Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

United Kingdom of Great Britain and Northern Ireland

Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) (Ratification: 1936)
Social Security (Minimum Standards) Convention, 1952 (No. 102) (Ratification: 1954)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Convention No. 42 (workers’ compensation for occupational diseases) and Convention No. 102 (minimum standards) together.

Part II (Medical care). Articles 8, 10, 11, 69 and 70 of Convention No. 102. The Committee takes due note of the information provided by the Government in reply to its previous request concerning the contingencies covered by medical care, the types of medical care benefits provided, the qualifying period for entitlement to medical care benefits, the causes of suspension of medical care benefits, and the right to complain and appeal of persons protected.

Parts III (Sickness benefit) and IV (Unemployment benefit. Benefits to be taken into account. Universal credit. The Committee recalls that its previous comments on the application of Part III, notably Articles 15(a), 16, 17, 68, 69, 72(1) and Part IV, notably Articles 22, 23, 24 of the Convention, concerned the Statutory Sick Pay, Agricultural Sick Pay, and Jobseeker’s Allowance (Contributory). The Committee notes however, from the indications provided by the Government in its report, that Parts III and IV of the Convention are now applied by the Universal Credit (UC), a social assistance benefit available to individuals and households of limited means, who may be at risk of falling into poverty, including in the event of sickness and unemployment. The Committee also notes the Government‘s indication that persons protected under the UC are all residents whose means during the contingency do not exceed prescribed limits and who meet conditions of entitlement. The Committee further notes, as indicated by the Government, that UC is currently being phased in on the United Kingdom territory and that it is foreseen to be fully implemented by the end of 2023. The Committee requests the Government to continue providing information on the implementation of the UC and on the number of residents protected under the UC.

Parts III (Sickness benefit) and IV (Unemployment benefit), in conjunction with Article 69. Suspension of benefit. Claimant commitment. The Committee notes from the information provided by the Government that all claimants must accept a Claimant Commitment as a condition of entitlement to UC. As explained by the Government, the Claimant Commitment sets out what claimants have agreed to do to prepare for and look for work, or to increase their earnings if already employed. The Claimant Commitment is based on the claimants’ personal circumstances and is not required in case claimants are physically or mentally unable to accept it and this is unlikely to change, or it would be unreasonable to expect them to do so due to terminal illness. The Government further indicates that a couple living in the same household makes a joint claim for UC and that each member of a couple has his or her own Claimant Commitment, being an equal claimant and therefore, jointly and individually liable. The Government further points out that acceptance of the Claimant Commitment is a legal condition of entitlement for UC for the full household. Thus, the Government specifies, in a household with two adult claimants, where one of the claimants does not accept his or her Claimant Commitment, this may result in the household (both adults) not being eligible for UC. The Committee also observes that section 3(3) of the Universal Credit Regulations of 2013, lists a number of cases in which a person who is a member of a couple may make a claim as a single person, e.g. if the person is not in the United Kingdom, under 18 years or a prisoner. The Committee recalls that the Convention does not allow the suspension of the benefit for causes other than those mentioned in Article 69 of the Convention and that failure by another person to accomplish certain formalities should not deprive a person protected to his or her own right to sickness or unemployment benefit when he/she meets the qualifying conditions set forth in Part III or IV of the Convention, respectively. The Committee thus requests the Government to indicate whether it is possible, in cases other than those specified in section 3(3) of the Universal Credit Regulations of 2013, for a person to make an individual claim despite living in the same household as his/her partner.

Part IV (Unemployment benefit), Articles 20 and 24(1)(b), in conjunction with Article 69. Work-related requirements in case of unemployment and reduction of the benefit. The Committee observes that sections 15–18 of the Welfare Reform Act of 2012 establish four types of work-related requirements, each of which comprising a range of actions to be performed by claimants, including requirements to carry out work searches and to take up paid work. The Committee also notes the indication by the Government that under section 97(4), (5) and (6) of the Universal Credit Regulations of 2013 and section 95(4), (5) and (6) of the Universal Credit Regulations (Northern Ireland) of 2016, restrictions on the type of work and the salary may be permitted where claimants have: (1) a strong and sustained work history in a specific occupation; (2) a health condition which may prevent them undertaking certain work or in certain locations. The period during which such restrictions are applied (“permitted period”) is up to three months at the discretion of a work coach who tests claimants’ prospects of finding this type of work. The Committee notes the explanations provided by the Government in this regard, specifying that the permitted period is at the discretion of a work coach, as in some circumstances an inflexible approach (limiting the work of a similar nature or level of remuneration to the previous work) could hinder an individual’s ability to find work and damage future employment prospects by creating a longer spell of unemployment. The Committee further notes that if a claimant fails to comply with work-related requirements for no good reason, the amount of UC benefit is to be reduced for a certain period in accordance with sections 26 and 27 of the Welfare Reform Act of 2012. The Committee recalls that Articles 20 and 24(1)(b), in conjunction with Article 69 of the Convention, provide protection against the suspension of unemployment benefit or the reduction of such benefit below the minimum level set out in its Article 22 (and the Schedule to Part XI), in case of refusal from the beneficiary to take up unsuitable employment, at least during the first 26 weeks of benefit payment. In light of the above, the Committee requests the Government to provide information on the amount and duration of the reduction applied to the benefit in case of refusal by a claimant to take up unsuitable employment, i.e. employment which does not match the criteria set out in section 94 of the Universal Credit Regulations of 2013 and section 95 of the Universal Credit Regulations (Northern Ireland) of 2016. The Committee also requests the Government to consider withholding such sanctions during the first 26 weeks of benefit payment and to provide information of the measures taken or envisaged to this effect.

Parts III (Sickness Benefit) and IV (Unemployment Benefit) in conjunction with Articles 71(3) and 72(2). Responsibility of the State for the due provision of benefits.

(i) Delay for first payment to be made. The Committee notes the information provided by the Government regarding the time required to process UC claims and to make the first payment to new claimants. More specifically, it notes that claimants receive their first payment five weeks after the point of claim, as an assessment period of a calendar month is needed to calculate entitlement, followed by one week of payment processing. The Committee notes that, during this period, claimants can apply for advance payments corresponding to up to 100 per cent of the total expected monthly award, which can be paid back over a period of up to 12 months, and up to 16 months from October 2021. The Committee further notes the indication by the Government that the offer of an advance is subject to checks to make sure that the claimant can afford the repayments and that around 60 per cent of new claimants eligible for UC receive such advance. The Committee requests the Government to indicate whether the UC benefit is paid retroactively from the day the claim is made, in respect of the five weeks comprising the assessment period and payment processing during which advances are provided. While noting that the UC is at the inception stage, the Committee hopes that the Government will consider reducing the five-week delay for payment of the UC benefit as soon as possible with a view to avoid hardship for the persons protected who are essentially persons with small means.

(ii) Digital service. The Committee notes, as indicated by the Government and on the Government’s website that all UC claimants have to have an online UC account to manage their claims and that the UC “live service” is no longer available for new claims (https://www.gov.uk/guidance/universal-credit-full-service-and-live-service). The Committee further notes the indication by the Government that the organization Citizens Advice (England and Wales) and Citizens Advice Scotland is mandated and funded by the Government to deliver new “Help to Claim” support to claimants making a new UC claim on a test basis for 12 months since April 2019. As further specified by the Government, “Help to Claim” offers tailored, practical support to help people make a UC claim up to receiving their first full correct payment on time and is available online, through web-chat, through a Freephone number and face to face through local Citizens Advice services. While noting the availability of support to claimants to use online facilities, the Committee observes that full digital service may limit the effective access of certain persons to UC benefit, due, in particular to the costs associated with the use of the Internet and the purchase of a computer and other information and communications technology equipment. The Committee further observes that persons who are not computer literate or who have a disability or a sickness which makes the use of a computer difficult may also be prevented from making a claim or accomplishing the required formalities for entitlement to the benefit. Recalling that, in accordance with Article 71(3) of the Convention, the State bears the general responsibility for the due provision of the benefits and shall take all measures required for this purpose, the Committee requests the Government to provide information on the measures taken or envisaged to ensure that the persons protected who do not have access to a computer or the Internet, as well as those who are not able to use it, can effectively access UC. The Committee also requests the Government to provide information on the outcome of the “Help to Claim” support.

Part V (Old-age benefit). Article 26(2). Increased pensionable age. In its previous comments, the Committee requested the Government to provide information on the first review of the increase of the state pension age beyond 65 years, particularly with regard to the working ability, labour market participation and worklessness of persons aged 65–67. The Committee takes note of the information provided by the Government on healthy life expectancy, disability-free life expectancy and employment rate of older persons as well as the Government’s indication that it has a number of research projects in the pipeline that are relevant to this question. The Committee further notes from the report that the next review of the state pension age beyond 65 years is scheduled for 2023 at the latest. The Committee requests the Government to provide information on the outcome of this review.

Article 28, in conjunction with Part XI (Standards to be complied with by periodical payments). Replacement rate of old-age benefit. The Committee notes the Government’s indication that the Pensions Act of 2014 introduced the new State Pension (nSP) for people reaching state pensionable age on or after 6 April 2016. The Government further indicates that the full rate of the nSP is based on 35 qualifying years of National Insurance contributions or credits and does not recognize dependants. Transitional arrangements are in place for those who have qualifying years before 6 April 2016, which take someone’s previous National Insurance contributions into account and mean that people could receive less or more than the full rate, depending on their National Insurance record. The Committee notes that the replacement rate of the nSP attains 76.4 per cent for a standard beneficiary of a man and a wife both of pensionable age, who have 30 qualifying years each and did not make National Insurance contributions or get National Insurance credits before 6 April 2016. The Committee further notes the Government’s indication that it is not currently appropriate to prorate the nSP and that data provided on the replacement rate is used to illustrate how the nSP calculation will work in the future using current rates. The Committee also notes that the calculation of the replacement rate are based on the assumption that each member in a couple has completed 30 qualifying years. In this regard, the Government explains that the UK National Insurance system awards qualifying years for appropriate work, self-employment and other forms of contributions to UK society (for example, caring for children, caring for dependent relatives including those with sickness and infirmity, seeking work or unable to work due to health conditions). The Government further points out that where there are two individuals in a household, the nSP system design ensures that each of them can build full entitlement over their working life, whether from work, credits from caring duties and other sources, or a combination of the two. In this regard, the Committee recalls that Part V of the Convention does not set out a qualifying period for a dependent spouse based on periods of employment or different forms of contribution, which means that entitlements based on such periods cannot be taken into account for the calculation of the benefit under the Convention. The Committee further observes that, according to the information provided by the Government, in the case of a household comprised of one individual, the replacement rate of the old-age pension is 36.7 per cent, which does not attain the 40 per cent replacement rate required by Article 28 in conjunction with Article 65 and the Schedule to Part XI of the Convention. The Committee notes however the Government’s indication that couples above state pensionable age with a low income may be entitled to Pension Credit: if their income falls below a minimum amount, which was £248.80 a week for couples in 2018–19, then it will be topped-up to a standard minimum amount. The Committee therefore requests the Government to provide calculations on the basis of the Pension Credit, in accordance with Article 67 of the Convention. The Committee further requests the Government to provide information on the annual increase of Pension Credit as compared to the increase of the cost-of-living index and the index of earnings.

Part X (Survivors’ benefit). Benefits to be taken into account. The Committee notes from the Government’s report that widowed parent’s allowance (WPA) and bereavement allowance are not available to new claimants since April 2017. The Committee asks the Government to indicate whether any periodical survivors’ benefits are available to persons protected whose breadwinner has died after April 2017, in accordance with Part X of the Convention.

Article 62 (Calculation of the level of benefit) in conjunction with Article 63 (Qualifying period) of Convention No. 102. In its previous comments, the Committee noted that the level of survivors’ benefit (36.18 per cent) was lower than 40 per cent required by the Convention. In its reply, the Government indicates that the 36.18 per cent of replacement level is based on the reduced basic rate of survivors’ benefit payable in case a number of qualifying years constitutes at least 25 per cent of the breadwinner’s working life in total. The Government refers to Article 63(3) of the Convention according to which the 40 per cent of replacement rate can be reduced by a further ten points in cases where only the minimum qualifying conditions are satisfied. The Committee recalls that Article 63(3) of the Convention allows lowering the replacement rate by ten points where a benefit is secured to the survivors of a breadwinner who had completed five years of contribution, employment or residence prior to his/her death. The Committee asks the Government to provide further explanations as to how the condition that the breadwinner had completed a qualifying period of at least 25 per cent of his/her working life prior to his/her death for his/her survivors to be entitled to a benefit corresponds to the qualifying period of five years of contribution, employment or residence set out in Article 63(3) of the Convention.

Part X (Survivors’ benefit), Article 69 of Convention No. 102. Suspension of benefit. The Committee notes the information provided by the Government in reply to its previous request concerning the ground for suspension of survivors’ benefit.

Article 2 of Convention No. 42. List of occupational diseases. In its previous comments, the Committee requested the Government to provide information on the manner in which the burden of proof is regulated with respect to diseases which are covered by the Convention but not included in the national list of occupational diseases. The Committee notes the Government’s statement that “where claims are made for injuries or diseases in cases of accidental exposure the claimant must show on the balance of probabilities that an accident occurred”. The Committee recalls that the Schedule appended to the Convention establishes a legal presumption of the vocational origin of the diseases listed in it whenever the workers concerned are employed in the corresponding trades, industries and processes, and relieves the worker of bearing the burden of proving the occupational origin of a disease and the costs of complex and lengthy judicial proceedings. The Committee therefore requests the Government to ensure that persons protected do not have burden of proof with respect to occupational diseases not covered by the national list but covered by the Convention, particularly: (i) all pathological manifestations due to radium and other radioactive substances and to X-rays; and (ii) poisoning by all halogen derivatives of hydrocarbons of the aliphatic series, to give full effect to Article 2 of the Convention.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM tripartite working group), the Governing Body has decided that member States for which the Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42), is in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or to accept Part VI of the Social Security (Minimum Standards) Convention, 1952 (No. 102) (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits and occupational diseases. Ratification of Convention No. 121 will involve the automatic denunciation of the outdated Convention No. 42. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group) and to consider ratifying Conventions Nos 121 and/or 102 (Part VI) as the most up-to-date instruments in this subject area.