Social Security (Minimum Standards) Convention, 1952 (No. 102) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1954)

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



A Government representative shared information about the welfare system in the country. As the United Kingdom had just held a general election, information could only be provided on the existing welfare law. Further information would be provided in the Government’s report on the application of the Convention in time for the next session of the Committee of Experts in 2017.

In relation to the key findings on Articles 16, 22, and 62 of the Convention concerning the adequacy of benefits, she indicated that her Government believed that its welfare safety net was adequate and that it balanced the requirements of a sustainable and affordable welfare system that supported the most vulnerable in society. Contribution-based benefits for unemployment and sickness represented one part of the overall welfare system, which included a mixture of income-related and social assistance benefits, such as housing benefits and tax credits. The main rates of the contribution-based Jobseekers Allowance and contributory Employment Support Allowance provided an income supplement to those who were not in employment. Additional support was available for those on low incomes and with limited capital. Moreover, the welfare system was based on the circumstances of those in receipt of benefits and targeted at those most in need. When assessing the adequacy of the welfare system, it was important to consider the support system as a whole.

The Committee of Experts had made comments on the inclusion of Child Tax Credits (CTCs). The CTCs were not actually a form of social assistance, but rather a form of social security. They were in the scope of the Convention and should therefore be included by the Committee of Experts in the relevant calculations when next considering compliance with the Convention. It was worth noting that many of those claiming the contribution-based Jobseekers Allowance and Employment Support Allowance were also claiming other benefits such as the Housing Benefit or Personal Independence Payment. Regarding the request of the Committee of Experts to undertake an actuarial study, she indicated that the Government regularly undertook assessments of the benefits it provided, including of the various income-related and social assistance benefits available for those on low incomes and with limited capital. Those studies indicated that working age contributory benefits along with income-related and social assistance benefits for those of working age accounted for almost 3 per cent of the GDP of the United Kingdom in 2016. Detailed explanations concerning the welfare system in the United Kingdom would be provided in response to the comments of the Committee of Experts.

The Worker members recalled that social security was one of the principal institutions that had emerged during the 20th century. For workers, it represented one of their greatest achievements and an extremely valuable heritage in that it expressed the spirit of the Declaration of Philadelphia and represented a tool for combating poverty anywhere, which constituted a danger to prosperity everywhere. Social security represented an act of civilization affirming that a truly modern society could not accept that men and women should be deprived of protection and be exposed to risk and need. The case of the United Kingdom indicated the extent to which these concepts and principles needed to be recalled and emphasized, including in the most industrialized countries, where social security had represented, and still represented, a major achievement in protecting workers from the changing fortunes of life, particularly by providing them with an income when they were out of work. Indeed, the importance of social security systems was not in question. A more common subject of discussion was the methods and means used to achieve the objective of such systems, and the extent to which these were attained.

In this regard, Convention No. 102 was a particularly original instrument, which established an internationally accepted definition of the very principle of social security by fixing the objectives to be achieved, not only the means of implementation. It established a minimum obligation for States in terms of results, and the Convention made it possible to measure progress attained on the basis of the specific results achieved. Another important feature of the Convention was that it was very flexible and offered a broad range of options and “flexibility clauses”, enabling its progressive implementation according to economic development. Moreover, each country had the possibility of combining contributory and non-contributory benefits, and public and occupational systems, so as to ensure the guaranteed minimum standard of protection. It had served as a model for the European Code of Social Security, a Council of Europe instrument which incorporated the minimum standards established by the Convention as its initial basis, the application of which was monitored by the Committee of Experts, thereby bearing witness to the independence, impartiality and objectivity of the latter.

The social security system in the United Kingdom was based on three levels: contributory benefits, income-based benefits, and various tax credits and means-tested social assistance benefits providing additional protection against poverty. This last aspect of social protection had recently been reformed, as a result of which all tax credits and means-tested social assistance benefits had been merged into a system known as “universal credit”, which was considered to be a social assistance benefit rather than a social security benefit, and did not therefore fall within the scope of the Convention. Even though a member State was free to declare benefits provided by the national social security system for which it accepted the obligations arising out of each part of the ratified Convention, this flexibility did not authorize a Government to claim that social assistance benefits did not fall within the scope of the Convention, because Article 67 of the Convention had been specifically included in order to assess whether the rate of such benefits was sufficient to meet the requirements of the Convention. The Committee of Experts had noted that the United Kingdom, by not taking account of the benefits constituting the “universal credit”, was in violation of the Convention with respect to sickness benefit, unemployment benefit and survivors’ benefit. The second point of the observation concerned the fact that contributory benefits did not reach the EUROSTAT at-risk-of-poverty threshold. The Government seemed unconcerned, as in its reply to this comment it considered that the social security net was “adequate”. However, a policy that sought to keep the basic living standard of persons who were receiving benefits and were not working below the absolute poverty threshold had the effect of using social security as a financial means of coercion towards employment. This kind of policy was a thing of the past and was incompatible with a modern vision of social security, one of whose objectives was precisely to prevent or reduce poverty.

Even though these remarks had been made in the context of the European Code of Social Security, they were still fully relevant to the present discussion and the Government should be called upon to perform the necessary calculations to establish the cost in terms of percentage GDP that would result from increasing these benefits so that the United Kingdom met its obligations. It should be noted that the “universal credit” system might prove insufficient to ensure the persons concerned a decent income since, according to the latest estimates, the reform would result in a reduction in income for a larger number of households (3.2 million) and would benefit fewer households (2.2 million). An alarm bell was sounding which needed to be taken seriously. The new forms of work and the proliferation of precarious situations needed to result in the strengthening, not weakening of social protection. The Government was therefore called upon to take the necessary steps to prevent this country, which had been the second to ratify Convention No. 102, from offering a terrible example of its application today.

The Employer members welcomed the Government’s announcement that it would report more fully on the application of the Convention in time for the next meeting of the Committee of Experts, including information on the ongoing revision of the social security system. They welcomed the inclusion of this technical Convention among the individual cases to be discussed by the Conference Committee. The Convention had been adopted by the International Labour Conference in 1952 and had been ratified by the Government in 1954. The United Kingdom had accepted Parts II–V, VII and X of the Convention. The Committee of Experts had considered the application of the Convention by the United Kingdom seven times since 1995, including in its most recent observations in 2016. This was the first time that the application of the Convention by the United Kingdom was examined in the Committee.

The Convention was lengthy and complex, which could also be said about the comments adopted by the Committee of Experts. The Employer members wished to emphasize that the role of the Committee of Experts was to make observations on the application of ratified Conventions – in the case at hand, exclusively on Convention No. 102. The Committee of Experts’ reference to other binding or non-binding instruments (including the European Social Code of Social Security and the European Social Charter) as well as to the assessment of the Committee of Ministers of the Council of Europe had created confusion as to the standards against which the Government was being assessed. They understood that there was an agreement between the ILO and the Council of Europe. However, the application of the European Code of Social Security was subject to a reporting mechanism to the Council of Europe. The mandate of the Committee of Experts in relation to the foundational work of this Committee was the basis on which Conventions had to be assessed. The assessment of the requirements of Conventions should be carried out in a clear and transparent manner. However, the manner in which the current observations of the Committee of Experts were drafted created confusion, partly because the Committee of Experts had referred to the Code and the Convention interchangeably without providing an explanation about “the Code” and why it was referenced. They expressed the hope that the Committee of Experts, in order to ensure that the ILO supervisory system was transparent and user-friendly, would take these points into consideration.

Concerning the obligations pursuant to the Convention, the Employer members noted that two main issues had been identified by the Committee of Experts which required further response from the Government. The first was whether non-contributory benefits fell outside the application of the Convention, and whether social assistance benefits fell within or outside the scope of the Convention. The second issue was whether or not the level of benefits fell below the minimum obligation under the Convention. Depending on the outcome of the first issue, an analysis of the second would be necessary. It would be helpful to know which minimum wages applied to be able to examine more fully the obligations under the Convention. In addition, the Employer members noted that the Government, in designing social benefit levels, had sought to find a balance between effective benefits on the one hand and incentives to work on the other. They had understood the Committee of Experts had to be critical of this motivation as being outdated and unreasonable. The position of the Employer members was that striving to maintain a balance between effective benefits and incentives within a sustainable system was in fact a legitimate and reasonable goal for the Government. The Convention was a flexible instrument and, in the view of the Employer members, allowed for such considerations to be made. They concluded by stating that they looked forward to the additional information and data to be provided by the Government before the next session of the Committee of Experts to enable a clearer understanding of compliance with the Convention.

The Worker member of the United Kingdom stated that current social security benefits in the United Kingdom had failed to meet the minimum requirements of the Convention. Recognizing that the Conference Committee’s consideration of the record on social security in the United Kingdom was not best timed in light of its proximity to the general election, she clarified that underlying the technical issues raised in this case were inadequacies in the existing social security provisions in the United Kingdom.

She drew attention to four areas of concern. First, the current social security benefit did not provide an adequate safety net for the most vulnerable in society, and failed to even meet the lowest EUROSTAT at-risk-of-poverty threshold of 40 per cent of median equalized income in the United Kingdom and in the European Union as a whole. The findings of the Committee of Experts had indeed been supported by the latest national statistics, which had confirmed that 70 per cent of working-age adults in working families were living in poverty. In addition, the value of out-of-work benefits had also failed to keep pace with earnings, with unemployment benefits falling from about 20 per cent of average earnings in the 1970s to less than 15 per cent at present. Second, although the Committee of Experts in their conclusions focused on out-of-work benefits, the United Kingdom was currently experiencing record levels of in-work poverty with more than 7 million people, including 2.6 million children, facing poverty despite being in a working family. Third, she stated that no attempt was being made to improve the provision of social security. Instead, recent government proposals had sought to cut the level of protection in future years, with many working-age benefit rates due to be frozen until 2020 and with reduced support for families with children envisaged. In this context, she drew attention to the introduction of Universal Credit in the United Kingdom, which would be significantly less generous than existing tax credits, with cuts to the proposed level of work allowances. Fourth, the social security system had failed to keep pace with changes in the labour market of the United Kingdom, in particular to increase in insecure forms of work such as zero-hours contracts, agency work and the emergence of online platform work (the so-called “gig economy”). Those in insecure work were significantly more likely to qualify for in-work benefits due to their low rates of pay, but such workers faced serious difficulties in accessing benefits due to the fluctuating nature of their working hours.

In addition, the current tax system in the United Kingdom might create incentives for employers to increase their reliance on forms of insecure work in order to reduce costs and avoid liability for employment-related taxation, in the form of national insurance contributions. Employers might also reduce their tax liabilities by employing individuals on a self-employed basis or even misclassifying workers as self-employed. She also addressed the question of the interpretation of ILO Conventions raised by the Employer members, referring to the mandate of the Committee of Experts as agreed by the social partners in February 2015 and March 2017. The agreement confirmed that the Committee of Experts could undertake an impartial and technical analysis of how Conventions were applied in law and practice by member States, while being cognizant of different national realities and legal systems.

In conclusion, the speaker called on the Government to take all steps necessary to comply with the Convention, including increasing the levels of benefits. The Government, in consultation with national social partners, should carry out a review of existing social security arrangements with a view to alleviating poverty levels, assessing whether existing rules incentivize the use of insecure work and ensuring that all working people benefit from effective social protection. The findings of such a review should be communicated to the Committee of Experts.

The Employer member of the United Kingdom requested the Committee to take into account the current situation in the country as a result of the elections that had been held only one day prior to the discussion of the case in the Committee. Following the dissolution of Parliament and until the formation of a new Government, civil servants could not take any action or make any announcements that showed affiliation to a political party (so-called “Purdah” rules), which necessarily restricted what the Government could do with regard to the case before the Committee. In the future, the Committee should take into account the existence of national elections to form a government when selecting countries for supervision, due to the clear risk of prejudice to the country concerned, especially those countries with rules similar to the “Purdah” rules. The Employer members of the United Kingdom had not sought the supervision of this case.

Moreover, given that the Committee of Experts had agreed to examine the European Code of Social Security, urgent clarification was required as to whether the social partners were expected to make future observations not only on the application of the Convention, but also on the Code. Clarification was also required regarding the status of the Technical Notes prepared by the Office concerning the state of application of social security provisions of the international treaties on social rights ratified by the United Kingdom. The observation of the Committee of Experts included references to the European Code of Social Security and the European Social Charter, in accordance with the arrangements between the ILO and the Council of Europe. However, the mandate of the Conference Committee was limited to supervision of ILO Conventions and Recommendations only, and the Government had been placed on the shortlist only with respect to the Convention. It was not the Committee’s mandate to supervise the observation of the Committee of Experts in respect of the European Code; this was the role of the Council of Europe. While understanding the logic of having a coherent analysis of the European Code and the Convention, the dual observation made by the Committee of Experts rendered supervision of the application of the Convention challenging.

At the time of the entry into force of the Convention in 1955, the Employers’ group had highlighted that the option of choosing branches of social security was incompatible with the principle of specific and comparable obligations in the ILO Constitution, and that there should be different Conventions for each branch of social security. As more than 60 years had passed, the supervision of obligations established in 1955 against national circumstances in 2017 was clearly unsatisfactory. He therefore questioned the up-to-date status of the Convention and whether it should be the subject of the Standards Review Mechanism process.

The Committee of Experts had observed that current sickness benefits, unemployment benefits, and survivors’ benefits fell below the permitted level prescribed in the Convention. He understood that the Government had disagreed on this point, insisting that social assistance benefits were not social security benefits and therefore should not be included in the calculation of overall protection levels. There was thus a clear conflict of interpretation; the Experts appear to concede that social assistance benefits fall out of the calculation, which was of concern because the Experts should not determine the meaning of the provisions of the Convention and then apply them. While anticipating that the Government would consider the Committee of Experts’ comments, which provided non-binding guidance, and this Committee’s conclusions in respect of Convention No. 102 only, he emphasized that the Government could balance its social security scheme in a manner determined at the national level while respecting its international obligations.

The Worker member of Australia indicated that the most significant shift in the world of work was the rise of precarious employment over the last two decades. In 2011, it was estimated that half of all jobs worldwide were considered precarious. The exponential rise in precarious employment posed a series of challenges for social security schemes. For example, where the scheme was based on a model of full-time, permanent work, it could exclude precarious workers when they were unemployed, sick, disabled, or in retirement. Even when precarious workers were formally protected, the lack of continuity in employment might result in inadequate coverage or limited benefits during unemployment and retirement. Gaps in social protection of this character led to further precariousness, as workers were forced to enter unregulated forms of employment in order to survive. This was not consistent with the obligations under the Convention.

It was therefore vital for governments to review social security arrangements to ensure that social safety nets provided the support necessary for workers in precarious or insecure employment. The level of insecure work in the United Kingdom suggested that some analysis and review should be undertaken to ensure that these workers were protected by social safety nets. The number of workers in the United Kingdom in positions where they could lose their jobs at short or no notice had grown by almost 2 million in the past decade. More than one in ten workers now faced precarious employment conditions. Half of the biggest group of precariously employed workers, the self-employed, were in low paying jobs, and took home less than two-thirds of average earnings. Two million self-employed people now earned below £8 per hour. The social partners in the United Kingdom should therefore undertake a review of the social security system to ensure that the growing numbers of insecure workers were adequately catered for by the social security system.

The Worker member of France considered it essential to recall the provisions of the preamble to the ILO Constitution and the Declaration of Philadelphia, which affirmed that universal and lasting peace could be established only if it were based upon social justice, and that poverty anywhere constituted a danger to prosperity everywhere. The Committee of Experts considered the level of unemployment benefits to be well below the minimum rate guaranteed by the Convention. Independent research carried out by the Joseph Rowntree Foundation showed that claimants of unemployment benefit had an income that was far below the minimum standard at which people could live under acceptable conditions, meet their basic needs and participate in society. The latest official statistics showed that 70 per cent of adults of working age in unemployed households lived in poverty (defined as less than 60 per cent of the median income after deduction of housing costs). Young adults received a particularly low level of benefit. In 2016, a single person of working age claiming unemployment allowance received 39 per cent of the income required for a basic standard of living. This allowance had decreased by 41 per cent since 2010. Couples with children received 61 per cent of the standard minimum income, or 62 per cent less than in 2010. The rates and terms of unemployment benefit had been amended by the austerity reforms, which had contributed to the impoverishment of the population. The press reported over 2,000 food banks in the United Kingdom that provided three meals per day for 1.1 million persons living in conditions of extreme poverty, including 436,938 children. The rising numbers of people dependent on food banks showed that poverty levels had increased, partly due to the system for calculating unemployment benefits, which was reducing benefit levels to next to nothing. Combined with the drastic rules governing entitlement to unemployment benefits (for example, requiring persons to carry out 35 hours of job search a week at the job centre, and taking away the benefits of those who arrived over ten minutes late for their job centre appointments), the situation of the unemployed was extremely precarious. Austerity policies were not only completely at odds with the provisions of Part IV of the Convention, but they also ran counter to the ILO’s founding texts, which affirmed that “poverty anywhere constitutes a danger to prosperity everywhere” and that “the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare”.

An observer representing the International Transport Workers’ Federation and the AFL–CIO emphasized that, in current times, the protection provided in the Convention was needed more than ever. The number of self-employed people in the United Kingdom had grown by 26 per cent over the last decade to 4.8 million, with 1.7 million estimated to be receiving earnings lower than the national minimum wage. An ever-increasing number of workers were misclassified as independent contractors, as many companies in the gig economy did not recognize the existence of employment relationships with their workers, thus depriving them of their rights, including those relating to social security entitlements. National courts had recognized this in some cases, finding that workers had been wrongly classified as self-employed. The British tax authority also stated that it would take all necessary steps to ensure that companies who wilfully misclassified their workers would pay the appropriate social security contributions. The speaker called upon the Government to clarify the law so as to deter the misclassification of workers in the gig economy by strengthening remedies and enforcement against misclassification, as well as establishing a strong statutory presumption of employee status. In terms of social protection, rather than redesigning the social security system to accommodate ever-increasing flexibility for employers, the Government should minimize insecurity at work. Even if platform-based drivers were classified as “workers”, they were often considered self-employed for tax purposes. Additionally, in terms of Universal Credit, it was unclear whether a “worker” would be considered as a self-employed independent contractor or as an employee. The Government had to act urgently to ensure that platform workers were adequately covered by the social security system. In this respect, he called on the Government to conduct a tripartite review of the social security system and to consider novel solutions, including the strengthening of government-managed or worker-negotiated portable benefits, in order to ensure that workers in the gig economy were given the social protection they deserved.

The Worker member of Sweden speaking on behalf of the trade unions of the Nordic countries, agreed with the observation of the Committee of Experts that the level of social security in the United Kingdom was significantly low and did not meet the minimum rates required by the Convention. There was a wealth of evidence that those on sickness benefits in the United Kingdom fell well below a minimum income standard required to provide individuals with a decent standard of living. The social security system provided for different forms of benefits for those unable to work due to sickness, subject to different qualification criteria. There were serious problems with these benefits: (i) the level of statutory sick pay was low; (ii) those in low-paid and insecure work were at risk of losing out on statutory sick pay; (iii) the entitlement was income-related and employed workers had to earn £113 per week to qualify; (iv) those employed in insecure work, including zero-hours contracts and agency work often lost out because they did not earn enough to qualify; and (v) statutory sick pay only applied from the fourth day of sickness.

The speaker deplored the fact that, despite concerns that the existing level of benefits contributed to high poverty levels, the Government had introduced further cuts in 2017. Workers receiving the Employment and Support Allowance, who were expected to be able to return to work within a rather short time, had had their benefits cut by nearly 30 per cent since April 2017. While the Convention provided for the progressive increase in the level of social security, developments in the United Kingdom seemed to go in the opposite direction. Regarding the comments made by the Employer members of the United Kingdom concerning the status of the Convention, she recalled that, although the Convention had been adopted in 1952, the case at hand had proven that the Convention and its application were very much needed for leading a life in dignity in case of illness. She therefore urged the Government to adjust the national legislation to meet the requirements set out in the Convention.

The Government representative thanked the Conference Committee for its careful consideration of the issues raised by the Committee of Experts and of the information submitted by her Government. She affirmed that her Government had taken due note of all the questions and comments made, and undertook to address these, as appropriate, in the report to the Committee of Experts.

The Employer members noted that the submissions of the Government had been brief in light of the national circumstances surrounding the recent elections. They encouraged the Government to provide the required information to the Committee of Experts, including the requested statistics to enable it to better analyse the situation concerning the application of the Convention by the United Kingdom. They looked forward to further consideration of the application of the Convention, once this information had been submitted.

The Worker members referred to a number of views expressed during the discussion to the effect that the Convention had become “obsolete” and considered that, if every country that failed to comply with a Convention used this argument, no Convention would be given effect. They also considered it useful to recall that the Social Protection Floors Recommendation, 2012 (No. 202), reaffirmed the importance of Convention No. 102, indicating in its preamble that these standards were of continuing relevance and continued to be important references for social security systems, and encouraging more ratifications of this up-to-date Convention. As reaffirmed during the last meeting of the Standards Review Mechanism in October 2016, the ratification of the Convention was encouraged. They added that the mandate of the Committee of Experts was described in detail in its report, and was recognized by employers and workers. In the case of the United Kingdom, the Committee of Experts had merely recalled the existence of Article 67 of the Convention and the meaning of this provision, based on the preparatory work. This examination concluded that the significance of this provision was beyond question. The only point worthy of attention was the violation of the Convention by the United Kingdom and the fact that the Government should be called upon to take the necessary measures to come into compliance with the Convention. This required a review of the current social security system, in consultation with the social partners, with the aim of substantially reducing poverty levels through an increase in social security benefits, and ensuring that the current system did not lead to an increase in precarious forms of work, but instead guaranteed sound and effective social protection for all workers. It was vitally important for the Government to give priority to this case, as the issue of poverty and lack of protection could not be left unanswered. Social cohesion and the balance of society as a whole were at stake.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee encouraged the Government of the United Kingdom to transmit to the Committee of Experts the additional information requested, including the relevant statistics, in order to enable the Experts to make a fresh evaluation of the application of the Convention in the country.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee proceeded with the examination of the application of Convention No. 102 on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.

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 from the supplementary information provided by the Government that the UC is currently being phased in on the United Kingdom territory and that it is expected to be fully implemented by September 2024. The Committee requests the Government to continue providing information on the state of implementation of the UC and on the effective population coverage of 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 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 notes the information provided by the Government on the possibility to remove the Claimant Commitment’s requirement, in exceptional circumstances, where a claimant is unable to accept a Claimant Commitment. This may include, for example, claimants who have an appointee or someone acting on their behalf, claimants who are incapacitated in hospital and exceptional emergency situations. Where the claimant is physically or mentally unable to accept a Claimant Commitment and this is unlikely to change, or it would be unreasonable to expect them to do so due to terminal illness, the requirement to accept a Claimant Commitment is waived.

While taking note of the above, 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. In order to assess the practical implications of the Claimant Commitment’s requirement on the effective provision of UC benefits, the Committee requests the Government to provide information on the number of cases in which a claimant who would have otherwise met the conditions for entitlement to UC benefit was denied such entitlement due to the failure of another adult in the same household to accept a Claimant Commitment.

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 on 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 takes note of the information provided by the Government on the various means available to UC beneficiaries who do not have access to a computer or the internet to contact UC and access the various services and on the assistance provided to internet users to support online claims.

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 77.4 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 38.7 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 £265.20 a week for couples in 2020–21, 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 (without adding family allowances), in accordance with Article 67 of the Convention.

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). 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. The Committee observes from the information provided by the Government that the total amount of the survivors’ benefit is £156.95 which comprises the basic WPA of £121.95, the Child Benefit of £21.05 for the eldest qualifying child, and of £13.95 for the second qualifying child. The Committee further observes that the replacement rate of the survivors’ benefit is 40,44 per cent. The Committee, however, notes from the Government’s indication that the standard basic rate (100 per cent) of the WPA is provided to a survivor in case a deceased spouse or civil partner had qualifying years for about 90 per cent of the years in his/her working life. If a deceased spouse or civil partner had fewer qualifying years than the number needed for the standard basic rate a smaller basic rate will be paid. The Committee further notes that the WPA of £121.95, which is taken into account in the calculations of the replacement rate, is the standard basic rate (100 per cent). In this regard, the Committee recalls that Article 63(1)(a) of the Convention sets out a minimum qualifying period of 15 years of contribution or employment upon completion of which the replacement rate of survivors’ benefit shall be not less than 40 per cent. The Committee therefore requests the Government to provide calculations of the replacement rate of the survivors’ benefit to which a spouse or civil partner of a deceased person with 15 years of contribution would be entitled.

Part X (Survivors’ benefit), Article 69. 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 Convention No. 121 and/or accepting Part VI of Convention No. 102 as the most up-to-date instruments in this subject area.

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

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.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Part II (Medical care) of the Convention. Please explain, with reference to concrete provisions of the national laws and regulations, how effect is given to the following provisions of the Convention, for which the reports on Conventions Nos 24, 25 and 102 and on the European Code of Social Security (Code) contain no relevant information.

Article 8. Please confirm that medical care is provided for “any morbid condition, whatever its cause,” and that the national legislation contains no limitations in this respect (for example, in case of attempted suicide, intoxication by alcohol or drugs, participation in a fight, etc.).

Article 10. Please confirm that general practitioner care includes domiciliary visiting and explain how the list of “the essential pharmaceutical supplies” is established in the United Kingdom.

Article 11. Please indicate what qualifying period of residence or stay in the country is established for the entitlement to medical care.

Articles 69 (Suspension of benefit) and 70 (Right of complaint and appeal). Please indicate how these provisions are applied in national law and practice.

Part III (Sickness benefit). Article 15(a) (Persons protected). The Committee notes that Part III of the Convention/Code is applied to prescribed classes of the economically active population. All employees who have average earnings above the Lower Earning Level (LEL – £112 a week from 6 April 2016) applying to National Insurance Contributions (NICs) are eligible for Statutory Sick Pay (SSP). All employees paying employed earner’s Class 1 NICs and all self-employed workers paying Class 2 rate of NICs are covered by the general scheme of Employment and Support Allowance, in cases where they are not entitled to SSP from an employer or where SSP is not appropriate (for example, the self-employed). Please indicate how the LEL is determined for employees and the self-employed, and the number of low-paid employees and self-employed excluded from coverage because of earning less than the LEL or not being able to pay respectively Class 1 or Class 2 rate of NICs. Please explain what other forms of protection in case of sickness are available for these classes of the economically active population.

Article 17 (Qualifying period). According to the report on Convention No. 25, workers in agriculture are covered by the general scheme for Sickness Insurance as described in Part III of the United Kingdom’s 2016 report on Convention No. 102. According to this later report, in Wales and Scotland conditions of entitlement of agricultural workers to Agricultural Sick Pay (ASP) are determined by the special legislation – the Agricultural Wages (Wales) Order 2016 in accordance with the Agricultural Sector (Wales) Act 2014, and the Agricultural Wages (Scotland) Order (No. 63) 2015. The latter, for example, makes provision for calculating the amount of ASP that agricultural employees are entitled to when they have been in continuous employment with the same employer for at least 52 weeks. After a period of 13 weeks of receiving ASP, an agricultural worker would be, if they are still sick, entitled to SSP. Agricultural workers who have worked less than 52 weeks are entitled to SSP only. Recalling that agricultural workers are covered by the Convention on the basis of equality of treatment with industrial workers, the Committee asks the Government to explain the difference between ASP and SSP as regards the level of benefit and the conditions of entitlement, particularly as regards the 52-week qualifying period of employment required for ASP.

Articles 68 (Suspension of benefit) and 69 (Right of complaint and appeal). According to the Government, it is up to the employer to decide whether they accept that their employee is incapable of work and eligible for payment of SSP. Recalling that benefits provided under the Convention shall be guaranteed by law irrespective of the will of the employer, the Committee asks the Government to indicate, with reference to concrete legislative provisions, in what circumstances the employer may at his own will suspend or refuse SSP to the sick worker and what other sanctions may be imposed on the worker concerned. Please specify what procedures of complaint and appeal are available to the worker to contest such decisions or sanctions of the employer.

Article 72(1) (Participative management of the benefit scheme). The Government confirms in its report that SSP is the main benefit covering the majority of persons protected during the whole period of payment of sickness benefit. The Committee observes that, where the administration of the benefit is not entrusted to the public authorities but is left in the hands of the employers, as is the case with SSP, representatives of the workers protected shall participate in the management, or be associated therewith in a consultative capacity, under prescribed conditions. Please indicate whether workers’ representatives are associated in any capacity with the administration of SSP at the level of individual undertakings or industry, or through collective agreements, or otherwise, and what statutory conditions may have been prescribed for such participation.

Part IV (Unemployment benefit), Article 23 (Length of the qualifying period). The Committee notes that to qualify for Jobseeker’s Allowance (JSA) (Contributory) a claimant must satisfy the primary and additional NICs conditions stipulated in section 2 of the Jobseekers Act 1995, which result in the length of the qualifying period extending over “the last two complete years before the beginning of the relevant benefit year” (section 2(1)(b) of the Act). The Committee observes that in the great majority of European States the length of the qualifying period for the entitlement to unemployment benefit does not surpass one year of contribution or employment, which is considered sufficient to preclude abuse of the benefit, in accordance with Article 23 of the Convention. The Committee asks the Government to explain the reasons for: (a) establishing a comparatively lengthier qualifying period for JSA; and (b) the additional NICs conditions mentioned in section 2(2) and (3) of the Jobseekers Act, which are difficult to understand for ILO experts.

Article 24 (Minimum duration of benefit). According to section 5(1) of the Jobseekers Act, the period for which a person is entitled to a contribution-based JSA “shall not exceed, in the aggregate, 182 days in any period for which his entitlement is established by reference (under section 2(1)(b)) to the same two years”. Please explain how this provision ensures that contribution-based JSA shall not be granted for less than 91 days (13 weeks) within a period of 12 months, in accordance with Article 24 of the Convention.

Part V (Old-age benefit), Article 26(2). Increased pensionable age. Under the Pensions Act 2011, the State Pension age for women will gradually increase from 60 to 65 between 2010 and 2018. Then, between 2018 and 2020, the State Pension age will increase from 65 to 66 for both men and women. The State Pension age will increase from 66 to 67 between 2026 and 2028 under the Pensions Act 2014. The timing of the increase from 67 to 68 is set from 2044 to 2046 according to the Pensions Act 2007. According to the report, the changes in State Pension age reflect increasing longevity in society and make the State Pension affordable in the long term. The Pensions Act 2014 contains a framework for further changes to State Pension age through a regular review by the Government. As part of the review process, the Government is required to commission a report from the Government Actuary’s Department looking at the implications of life expectancy data for State Pension age. The legislation also requires the Government to commission a further independent report covering other relevant factors. This may include variations in life expectancy between socio-economic groups, and the wider economic context at the time of a review. All reports prepared as part of the review must be published. The Government will publish a report on their review of the State Pension age every six years. The first review will report to Parliament before 7 May 2017. The Committee hopes that the Government’s next report on the Convention will explain the findings of 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 engaged in manual labour, including in onerous and hazardous occupations entailing premature physical ageing. Please confirm that, following the abolishment of the default retirement age, in the United Kingdom there are no occupations that are deemed by national legislation to be arduous or unhealthy for the purpose of lowering the pensionable age. In this connection, the Committee notes that the Office for National Statistics plans to produce regular publications on “Healthy Life Expectancy and Disability-Free Life Expectancy” broken down by social economic class, which will include the classes of workers engaged in manual labour, and that the Office for National Statistics will consider what might be appropriate data and research for understanding the labour market impact on the said classes of manual workers.

Part X (Survivors’ benefit), Articles 63 (Qualifying period) and 69 (Suspension of benefit). Please indicate how these provisions are applied in national law and practice.

Part XIV (Miscellaneous provisions), Article 76(1). Consolidated reporting on the Convention/Code. In its 2015 conclusions on the Code, the Committee invited the Government to coordinate the fulfilment of its compliance and reporting obligations under the Code, Convention No. 102 and the relevant provisions of the European Social Charter, 1961, with a view to improving the quality and consistency of the information provided in the reports. To facilitate the integrated management and comparative analysis of the United Kingdom’s obligations under different social security instruments, the Committee referred the Government to the coordination tables, reporting timelines and relevant comments of the supervisory bodies compiled in the ILO Technical Note on the state of application of the provisions for social security of the international treaties on social rights ratified by the United Kingdom, published in the country profile on the database. Consequently, the Government representative of the United Kingdom in the Governmental Committee on the European Social Charter and the European Code of Social Security has requested the ILO to consolidate the information provided in the previous reports on international social security instruments ratified by the United Kingdom. In preparing the Consolidated Report (CR) the Committee has taken into account the information extracted from the previous UK reports on the Code and ILO social security Conventions Nos 12, 17, 24, 25, 42 and 102 supplied during the period 2006–16. The reports prior to 2006 were not taken into account as the information contained in them is likely to be outdated. The resulting CR thus contains all the relevant information provided by the United Kingdom over the last decade on the application of these instruments and greatly improves the quality of reporting in terms of the consistency of the information available, coherence across different schemes and benefits providing protection, and the efficacy of the regulatory framework governing the national social security system.

With regard to the completeness of the available information, the CR reveals certain information gaps which do not permit to assess compliance with the indicated provisions of the Convention/Code, as is the case for example with Articles 68 (cases of suspension of benefits) and 69 (the right of complaint and appeal) for Parts II and III of the Convention/Code. Not only these provisions are highlighted in the CR but relevant questions of the report forms on the Code and ILO Conventions are included as a reminder to complete the CR with the requested information. With respect to the clarity of the information provided, particularly as regards rules and elements taken into account for the calculation of the level of benefits, in many instances it requires technical clarifications from the national experts and concrete references to the corresponding provisions of the national regulations. In order to facilitate the experts’ dialogue on these highly technical issues which depend upon the context in which they are used, the statements in question are highlighted and appropriate marks and questions are entered by the Committee directly in the text of the CR. In view of the significant volume (120 pages) and the complexity of the CR, it is also equipped with user-friendly navigation signs and summary tables. The information included by the Government in its reports, but which is not directly relevant to the legal obligations under the respective provisions of the Code and ILO Conventions, is reproduced in the annexes to the CR. The Committee attaches the CR to the 2016 conclusions on the Code and asks the Government to complete it with the missing information, technical clarifications, provisions of the national legislation and statistics.

Sources and consistency of statistical data. According to Article 76(1)(b) of Convention No. 102 and Article 74(1)(b) of the Code, the reports shall include evidence of compliance with statistical conditions specified with respect to the number of persons protected, the rates of benefits and the proportion of the financial resources constituted by the insurance contributions of employees protected. It should be noted that the same statistical information given in reports on different instruments often comes from different sources and databases used by different government agencies contributing to the report, and is not compatible. It is also not uncommon for the source of information not being indicated at all or the exact data being replaced by ad hoc estimates. The Committee recalls that one of the main characteristics of the Code and ILO social security Conventions consists in that compliance with their provisions is established by reference to precise numbers and percentages, which makes the quality, consistency and comparability of the statistical information an essential condition of the effective functioning of the supervisory mechanism. The Committee has therefore elaborated a simplified template for the statistical data requested in the report forms on the Code and ILO Conventions, which is attached to the 2016 conclusions on the Code, and has prefilled it with the data given in the Government’s latest reports, which may at times appear to be divergent or controversial. The Committee asks the Government to check the data for consistency, to fill in the lacking information, to align the data for the same time basis to enable comparison, and to specify the official sources of statistics which shall henceforth be continuously used by the Government for this purpose.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Parts III, IV, V, VII and X of the Convention. Benefits to be taken into account. The Committee recalls that the system of social protection in the United Kingdom comprises contribution-based and income-based social security benefits, as well as various tax credits and a range of means-tested social assistance benefits, which offer additional protection against poverty. Contribution-based benefits are payable at a flat rate to anyone who has paid the requisite amount of National Insurance Contributions (NICs). Income-based benefits replace or supplement contribution-based benefits and are available to all who meet the eligibility criteria as to their income. In case of sickness, income security is ensured through a mix of measures comprising employer liability provisions, contributory social insurance benefits and non-contributory income-tested benefits, which together seem to offer the level of social protection comparable to that guaranteed by the Convention. According to the Government, the obligation to provide sickness benefit cover is met through a combination of Statutory Sick Pay (SSP) payable to employed workers by their employers, and contribution-based Employment and Support Allowance (ESA), which is available to employed and self-employed earners who are not covered for SSP purposes or whose entitlement to SSP has come to an end after the maximum duration of 28 weeks. SSP can be considered the main benefit covering the majority of persons protected during the whole period of payment of sickness benefit, as prescribed by Article 18(1) of the Convention/Code. ESA plays a supplementary role protecting only those who are not covered by SSP. Taken together, the Government believes these benefits ensure the required level of income security for the duration outlined by Part III of the Convention/Code. As regards the role of the income-tested benefits in the case of sickness, they are currently being replaced by Universal Credit (UC), which “is a general anti-poverty benefit available to those at risk of falling into poverty. It is payable to people out of work as well as those in work and on a low income. The UK classifies this as a ‘social assistance’ rather than a ‘social security’ benefit … As Universal Credit is a form of social assistance it does not fall within the scope of the Code.” Therefore, the Government considers that the United Kingdom’s obligation under the accepted Parts of the Convention/Code should continue to be met for the foreseeable future on the force of the NIC-based social security benefits alone.

The Committee takes due note of these important statements. It notes in particular that the United Kingdom wishes to apply Part III of the Code/Convention on the force of the combination of SSP and ESA (Contributory) at the exclusion of income-tested benefits such as income-related ESA and UC. Moreover, the Government insists that non-contributory income-related benefits shall not be taken into account for the purpose of all accepted Parts of the Code/Convention. The Committee observes that a Contracting Party is free to declare on the force of which benefits provided by the national social security system it accepts the obligations of the Code/Convention under each Part covered by its ratification. While respecting the above choice of the Government, the Committee would only partially agree with its statement that social assistance benefits fall outside of the scope of the Code/Convention. Indeed, the Code/Convention does not apply to the discretionary social assistance provided by the local authorities as they deem necessary; it fully applies to non-contributory means-tested social assistance benefits provided to all residents as of right. It is for measuring the adequacy of the rate of such benefits that Article 67 was included in the Code and Convention No. 102. The preparatory document on Convention No. 102 clearly states that Article 67 “applies to cases of social assistance under which the benefit may be reduced by part of the income or means of the beneficiary during the contingency. Safeguards are obviously required if social assistance is to be admitted for the purpose of compliance … A Member wishing to comply on the basis of social assistance would therefore have to prove that its maximum benefit, which will be payable to a family without sufficient means, is actually a subsistence benefit and large enough to permit the family to live under tolerable conditions” (Report V(B), International Labour Conference, 35th Session, Geneva, 1952, p. 110).

Part III (Sickness benefit), Article 16 (Calculation of the level of benefit). The Committee notes that the calculation of the replacement level of the SSP and ESA (Contributory) for the standard beneficiary (man with wife and two children) includes Child Tax Credit (CTC) of £117.50 in respect of two children. CTC is a means-tested form of support for low-income families with children who are in or out of work and living in the United Kingdom. Means-tested benefits, according to the Government, are not a form of social security and fall outside the scope of the Code/Convention. Following this logic, CTC, as a means-tested benefit, shall not be included in the calculation of the replacement level of SSP or ESA. Recalculated without CTC, the replacement rate of SSP Week 1–28 stands at 30.25 per cent of the reference wage of an ordinary labourer, of ESA (Contributory) Week 1–13 at 26.50 per cent and for Week 14 onwards at 33.62 per cent. The Committee observes that these rates fall much below the minimum rate of 45 per cent guaranteed by the Convention/Code and concludes that social security benefits in case of sickness, as they are understood and conceived by the Government, do not permit the United Kingdom to fulfil its obligations under Part III of the Convention/Code as regards the level of benefit.

Part IV (Unemployment benefit), Article 22 (Calculation of the level of benefit). The Committee notes that the calculation of the replacement level of the contribution-based Jobseeker’s Allowance (JSA) for the standard beneficiary (man with wife and two children) includes CTC of £117.50 in respect of two children and refers the Government to its comments under Article 16 above. Recalculated without CTC, the replacement rate of JSA Joint Claim stands at 36.75 per cent of the reference wage of an ordinary labourer, which is much below the minimum rate of 45 per cent guaranteed by the Convention. The Committee concludes that the United Kingdom does not fulfil its obligations under Part IV of the Convention as regards the level of unemployment benefit.

Part X (Survivors’ benefit), Article 62 (Calculation of the level of benefit). The Committee notes that, according to the data given in the report on Convention No. 102, the weekly rate of widow’s benefit together with Child Benefit but excluding CTC will provide a replacement rate of 36.18 per cent, which is below the minimum level of 40 per cent guaranteed by the Convention. Referring to its comments under Article 16 above, the Committee concludes that the United Kingdom does not fulfil its obligations under Part X of the Convention as regards the guaranteed level of the survivors’ benefit.

Level of contribution-based and income-related benefits below poverty line. During the last decade, the Committee of Ministers of the Council of Europe has been repeatedly pointing out that, unlike the income-based ESA and JSA, the contribution-based ESA and JSA fell short of the minimum level prescribed by the Code/Convention and do not attain even the lowest EUROSTAT at-risk-of-poverty threshold of 40 per cent of median equivalized income in the United Kingdom and in the European Union as a whole. In its latest reply, the Government states that: (a) “the rates of contributory ESA and JSA are the same as the income-based rates of ESA and JSA respectively”; (b) “the Government believes that it maintains a strong welfare safety net that is adequate and balances the requirements of a sustainable welfare system with the need to ensure that work pays”; and (c) “the Committee should note that the main rates of Jobseeker’s Allowance and Employment and Support Allowance provide a basic standard of living to those who are not in work at a level that does not disincentivise moving into work or back into work when the opportunity arises or their health permits”. With respect to these statements, one should first of all note that the Government is not contesting the fact that the level of the said benefits is insufficient in terms of the international standard established by the Code and Convention No. 102 and the at-risk-of-poverty threshold established by EUROSTAT. Instead, it considers this insufficient level “adequate” in terms of internal standard of welfare, and consequently expresses no intention to comply with the United Kingdom’s obligation to maintain social security benefits at least at the minimum level guaranteed by these international instruments. In appraising the Government’s position from a legal point of view, the Committee is bound to recall some basic rules of conduct of the Contracting Parties with respect to their international obligations freely assumed under the Code and ILO Conventions. Thus, the Vienna Convention on the Law of Treaties 1969 stipulates, in particular, that “every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Article 26: Pacta sunt servanda), and that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (Article 27: Internal law and observance of treaties). With regard to the internal provisions to incentivize sick or unemployed workers moving into work as soon as possible invoked by the Government to justify its failure to guarantee the minimum benefits prescribed by the Code and Convention No. 102, the Committee considers that the policy of keeping the basic standard of living of those who are on benefits and not in work below the absolute poverty line results in using social security as a means of economic compulsion to labour. While such policies were indeed common in Europe in the nineteenth century, in the twenty-first century the international community believes that “basic income security should allow life in dignity” and “secure protection aimed at preventing or alleviating poverty”, as it was recently stated in the Social Protection Floors Recommendation, 2012 (No. 202). The policy of keeping the rates of SSP, ESA, JSA and the widow’s benefit, contribution-based as well as income-based benefits, below the poverty line stands in direct contradiction to such objectives of the Code as “harmonising social charges in member countries” and “facilitating their social progress”, stated in its Preamble. In such situations where national welfare systems are designed in violation of the requirements of the Code, the Committee of Ministers reminds the Contracting Parties, as it has done in the Resolution CM/ResCSS(2016)21 on the application of the Code by the United Kingdom, that common European social security standards may be effective only so much as they are being respected and fulfilled by all and every member State. As, notwithstanding these reminders, the Government apparently remains deaf to the common European and international objectives of social protection, the Committee of Ministers should point out that, in accordance with Articles 66, 67 and 70(3) of the Code, the Government shall accept general responsibility for the due provision of the said benefits at the level which shall be sufficient to maintain the family of the beneficiary in health and decency, and shall not be less than the level calculated in accordance with the requirements of Article 66. To fulfil these provisions in good faith, the Code/Convention requires the Government to take all the necessary measures, including actuarial studies and calculations of the changes in benefits, insurance contributions, or the taxes allocated to covering the contingencies in question. Regretfully, there are no such measures mentioned in the report, which merely indicates that the proportion of expenditure on contributory benefits as a share of gross domestic product (GDP) has remained broadly stable over recent years, from 4.8 per cent in 2008–09 to 5.2 per cent in 2016–17, and forecast to be 4.9 per cent by 2020–21. Taking into account that, with these resources, the levels of abovementioned benefits were considered by Resolution CM/ResCSS(2016)21 to be manifestly inadequate in the meaning of Article 66 of the European Code of Social Security as well as in the meaning of Article 12(1) of the European Social Charter, the Committee asks the Government to undertake an actuarial study on the cost, in terms of a share of GDP, of bringing the level of contributory benefits to the minimum level guaranteed by the Code and to assess the capacity of the national economy to maintain them above the poverty line. As regards generation of additional resources which may be required for this purpose, the Committee draws attention to the 2010 estimation of the National Institute for Economic and Social Research, mentioned in the Government’s report, that extending average working lives by one effective year, which is the purpose of raising the State Pension age from 65 to 66 years by 2020, could increase GDP by around 1 per cent.

In this context, the Committee has also considered the demand of the Government to take into account that contribution-based benefits represent one part of the overall welfare system that includes a mixture of income-related and social assistance benefits, such as housing benefit and tax credits, and that the Government is taking additional steps to incentivize and support people into work. This includes measures such as the introduction of the national living wage, which increases the minimum level of pay per hour for those aged 25 or over; the increases to the personal allowance in income tax which has ensured that workers keep more of what they earn; and the reforms to childcare including doubling the hours of free childcare available for working parents of 3–4 year-olds from 15 to 30 hours and the introduction of tax-free childcare. The Committee, much as it would have liked to take into account social assistance benefits and other measures mentioned above in assessing the overall level of protection ensured by the national social security system, regrets to point out that, following the position firmly expressed by the Government, these measures “fall outside the scope of the Code as they are not a form of social security”. Nevertheless, the Committee is ready to enlarge the scope of social protections to be taken into account for the purposes of the Code and Convention No. 102, if the Government would reconsider its position.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee’s comments below are based on the Government’s report on the Convention received in August 2011 containing its reply to the Committee’s previous observation of 2008, as well as on the ongoing dialogue with the Government in the framework of its annual reports on the European Code of Social Security for the period 2009–12. The Committee would like to thank the Government for the detailed explanations of the current innovative reforms of the United Kingdom’s welfare system, which are often breaking new grounds in the development of contemporary social security thinking and help the Committee to understand similar trends in other countries. The Committee draws the Government’s attention to the present comments on the Convention, which reproduce questions raised by the Committee in its 2012 conclusions on the European Code of Social Security, and invites the Government to consider preparing a single reply for both instruments.

Part III (Sickness benefit) of the Convention. Article 17. In reply to the Committee’s 2011 conclusions on the Code concerning the reasons for changing the qualifying condition for the Employment and Support Allowance (ESA), the Government’s 44th report on the Code indicates that the Welfare Reform Act 2009 and the Social Security (Contribution Conditions for Jobseeker’s Allowance and Employment and Support Allowance) Regulations 2010 amend the national insurance contribution conditions from 1 November 2010 so that the number of tax years in which a person needs to pay national insurance contributions to qualify for ESA is reduced from three years to two. This aligns the period for ESA with that of Jobseeker’s Allowance (JSA). For each of the previous two tax years, claimants must have paid class 1 or class 2 contributions on earnings of 50 times the lower earnings limit for that tax year (£97 a week in 2010/11). This differs to the previous rules where people could qualify for a lifetime of contributory ESA by paying contributions on earnings from around 12 weeks’ work at the national minimum wage, or just three weeks’ work at higher-rate taxpayer income levels.

The Committee understands from these explanations that changes in the contributory period for ESA were motivated, on the one hand, by the need to align the qualifying conditions of ESA with that of JSA and, on the other hand, by establishing a fairer contribution requirement for obtaining a benefit which may last a lifetime. The Committee notes however that the Government’s next move consisted in transforming the contributory ESA from a “lifetime” into a short-term benefit, by reducing its duration to only one year – a period even shorter than the qualifying period of two tax years in which required contributions have to be paid. Indeed, the Welfare Reform Act 2012 introduced a one-year time limit on entitlement to contributory ESA for those in the work-related activity group. This change has been introduced from 30 April 2012 and has immediate effect on people who are currently claiming contributory ESA as well as those making new claims. Explaining this move, the Government states that people could previously qualify for many years of benefit on the basis of national insurance contributions paid over a relatively short period of time. This is no longer acceptable in the current fiscal climate, where the Department for Work and Pensions sees the need to review the balance between contributions paid and indefinite entitlement to support. Introducing a limit on the length of time people in the work-related activity group can claim contributory ESA underlines the principle that they are expected to move into work. According to the Government, ESA is thus made more consistent with the rules for contributory JSA, which has a time limit of six months.

Reflecting on the explanations of these changes to ESA given in the 44th report on the Code by reference to the “current fiscal climate”, the Committee observes that they have a direct impact on the application of Part III of the Convention. Toughening the qualifying conditions for the entitlement to ESA on the one side, while drastically reducing its duration on the other side, leads to a straightforward reduction of protection offered by the sickness benefit, which, though well explained by the Government, could hardly be seen as keeping with the objective of Article 17 of the Convention. All the more closer alignment of ESA with JSA confirms the Committee’s previous conclusions that, by subjecting ESA to a mandatory work-related activity regime, the UK system was moving away from the traditional concept of sickness and invalidity benefits towards a “workfare” regime. In this respect, the Committee has previously concluded that the minimum duration of sickness benefit of at least 26 weeks guaranteed by Article 18(1) of the Convention is not observed to the extent that the work-related activity regime of ESA imposed after the 13th week of benefit comes into conflict with the conditions of entitlement to the sickness benefit admitted by the Convention. The Government disagrees with this view in its 44th report and believes that claimants should engage with the conditionality regime as part of their claim for sickness benefits in order to receive help and support to return to work where possible. The conditionality regime depends on the claimant’s prognosis: claimants with a three- or six-month prognosis are usually referred to the work programme and those with a 12-month or more prognosis are usually subject to mandatory work-focused interviews (WFI) and work-related activity (WRA). Alternatively, these claimants can choose to enter the work programme. The Government believes that these arrangements are not incompatible with its obligations and requirement to provide sickness benefit under the Convention. The Committee recalls in this respect that to substantiate its point of view, the Government has been invited by the Committee of Ministers of the Council of Europe in the 2012 resolution on the application of the Code by the United Kingdom to explain in detail, with reference to corresponding legal and administrative provisions, the sanctions applied for refusal to engage in the work-related activity regime, including WFI, WRA and the work programme, and the discretionary powers conferred in this respect on the advisers by the 2011 Work-Related Activity Regulations. The Committee hopes that, in its next report on the Convention, the Government will also be able to show that the obligations and sanctions under the work-related activity regime are of such a nature as not to unduly limit the protection afforded by Part III of the Convention to sick persons after the 13th week of sickness. In doing so, the Government should take into account the cases of the suspension of benefits admitted by Article 69 of the Convention.

Part V (Old-age benefit). Article 28. The 44th report on the Code indicates that on 12 July 2012 the Minister of State for Pensions announced details about the single-tier reform of state pensions and a review of state pension age. These reforms would lead to a simpler and fairer system, reducing the need for means testing and rewarding saving. The single-tier pension would be set at a level above the standard minimum guarantee in the (means-tested) pension credit. This will help to ensure that those of working age will be able to save for their retirement with confidence. The reforms would be introduced early in the next Parliament. The Committee would like the Government to specify whether the new single-tier pension, when introduced, would be sufficient by itself to ensure the 40 per cent replacement level required by the Convention or would need to be complemented for this by the product of individual savings.

Part XI (Standards to be complied with by periodical payments). Article 66. The Committee understands from the reply of the Government to its 2011 conclusion on the Code that the Government intends henceforth to determine the reference wage of an ordinary adult male labourer under Article 66 of the Convention as the median full-time gross weekly rate for elementary occupations established by the annual survey of hours and earnings (ASHE). This figure for 2010 (not excluding overtime) would be £330 (rounded). The Committee wishes to recall in this respect that, in accordance with Article 66(7) of the Convention, the wage of the ordinary adult male labourer shall be determined on the basis of the rates of wages for normal hours of work fixed by collective agreements, by or in pursuance of national laws or regulations, where applicable, or by custom, including cost-of-living allowances if any.

Social security and reduction of poverty. In its previous 2011 conclusions on the Code, the Committee asked the Government to supply the most recent and comprehensive statistics on the dynamics of poverty in the country. In reply, the report indicates that the latest national statistics on households below average income (HBAI) produced by the Department for Work and Pensions were released on 14 June 2012 and give an insight into the standard of living of the household population in the United Kingdom, focusing on the lower part of income distribution, for the period up to the end of 2010–11. Compared to 1998–99, the number of children and pensioners who were in households in the United Kingdom with incomes below 60 per cent of contemporary median net disposable household income before housing costs (BHC) and after housing costs (AHC) has notably decreased, while the number of working-age adults increased in the last ten years by 0.5 million on a BHC basis and 1.1 million AHC. The Committee wishes the Government to explain what measures it is taking to reverse this long-term trend of the spread of poverty among the working-age population in the UK and to explain in particular the fact that, compared to 2009–10, the number of working-age adults in such low-income households has indeed fallen by 1 percentage point.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to its previous comments, which refers to the information provided in the 40th annual report on the application by the United Kingdom of the European Code of Social Security.

Part III (Sickness benefit) of the Convention. The Committee notes the detailed information concerning the inclusion of the Child Tax Credit into the calculation of the replacement rate of the short-term benefits provided by the Government in reply to its previous conclusion. It also notes that the Government’s next report will include full details on the implementation of the new Employment and Support Allowance which is to be introduced from 27 October 2008.

Part IV (Unemployment benefit). The Committee recalls that the system of social protection against unemployment in the United Kingdom comprises various social security benefits including contribution-based and income-based Jobseekers’ Allowances (JSA), working tax credits, which make low-paid jobs more attractive for the unemployed, and a wide range of means tested social assistance benefits, which offer protection against poverty. The Committee would like the Government to show in its next report, on the basis of updated statistics, that the number of persons protected by the benefits included in the system attains the coverage required by Articles 5 and 21 of the Convention. Please indicate the amounts of these benefits which would be payable in the case of unemployment to a person having received the reference wage of an ordinary adult male labourer, determined under Article 66 of the Convention. The Committee would also be grateful to receive updated information for the same time period on the total number of unemployed persons in the country, the percentage of unemployed persons receiving the contribution-based JSA alone and the income-based JSA alone, as well as the average duration spent on these benefits before returning to work.

Part V (Old-age benefit), Article 28(a) (level of benefit). In its previous comments, the Committee noted that the rate of retirement pension for a standard beneficiary in 2006, represented 32.06 per cent of the reference wage, which is far below the minimum replacement level of 40 per cent prescribed by the Convention. In view of the ongoing pension reform in the United Kingdom, the Government was asked to indicate the part of the replacement income in retirement which, in the forecasted time frame, would be provided by the Basic State Pension (BSP) and the Second State Pension (SSP), as well as the part which would be supplied from the savings in the personal account. In reply, the Government indicated that for the median earner gaining £24,440 in 2007/08 earning terms and reaching state pension age in 2055, total weekly retirement outcomes in the year of retirement would represent £223 and ensure the replacement level of 47.5 per cent. Of this total, BSP (£82) and SSP (£69) in 2055 will ensure the replacement level of only 32.16 per cent, the same as in 2006, which will remain below the level prescribed by the Convention. The Committee understands, therefore, that to reach the projected replacement level of 47.5 per cent, the Government is counting on the private savings accrued within personal accounts, which are expected to generate a private pension (£72) providing about one-third of total retirement income. The Committee wishes the Government to provide an actuarial forecast under the best possible scenario showing by which year private pensions of at least 50 per cent of all employees in the country would be such as to ensure, together with BSP and SSP, the total retirement income of these employees, which will attain the 40 per cent replacement level guaranteed by the Convention. Please also indicate whether the current financial crisis has made it necessary to introduce corrections in the ongoing pension reform as regards the sustainability of the state pension system and the expected growth of private pensions.

Part X (Survivors’ benefit), Article 63, paragraph 1(a) and paragraph 2(a), (Level of benefit). To receive 100 per cent basic rate Widowed Parent’s Allowance (WPA), the late husband must have had qualifying years for about 90 per cent of the years in his working life. If the number of qualifying years is less than the number needed for a 100 per cent basic rate, the allowance is reduced accordingly; no allowance is payable if the number of qualifying years is less than a quarter of the number needed. The report states that, if 25 qualifying years yielded 100 per cent, the 15 qualifying years would equate to 69 per cent and five qualifying years would equate to nil. This explanation raises doubts that the above rule for calculating the qualifying period of the deceased husband for his wife’s entitlement to the WPA would ensure the level of protection of the widow guaranteed by the Convention. While the condition of having 90 per cent of the years in the breadwinner’s working life counted as qualifying years might be more favourable in case there were no, or very few, gaps in the breadwinner’s working career, the situation would be reversed for widows whose late husband’s working career has been considerably shorter than his working life. Thus, having 15 qualifying years out of 20 years of working life will result in 25 per cent reduction in the WPA, bringing it below the level required by the Convention, and having only five qualifying years, which should give entitlement to a widow’s reduced benefit under Article 63(2)(a) of the Convention, will result in no benefit at all. The Committee would like the Government to show in its next report, on the basis of the updated calculations, that in all cases covered by the Convention, the protection offered to a standard beneficiary by the WPA and other relevant benefits will not be less than the minimum replacement level of 40 per cent fixed by the Convention.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee took note of the information supplied by the Government in its detailed report on the Convention for the period 2001–06, which has provided replies on a number of points raised in its previous comments, as well as of the 38th and 39th annual reports on the application by the United Kingdom of the European Code of Social Security. The Committee would like the Government to provide additional information on the following points.

Part III (Sickness benefit) of the Convention. (a) Article 16, paragraph 1, in relation to Article 66 (level of the benefit). The detailed report of the Government stated that incapacity benefit (IB) is the main state sickness benefit in the United Kingdom for persons unable to work because of either short-term or long-term sickness. Employed workers are paid statutory sick pay (SSP) by their employers for the first 28 weeks of incapacity. Once entitlement to SSP has been exhausted employees can transfer on to IB. Employees who do not qualify for SSP can claim IB instead from the onset of incapacity. Comparing the calculations of the replacement level of the weekly rates of the short-term IB and of the SSP made in the last two detailed reports of the Government in 2001 and 2006, the Committee notes that, in addition to the child benefit for two children and the adult dependency increase which were taken into account in 2001, the calculations made in 2006 include the child tax credit (CTC) (£78.69 for both children). With the addition of the CTC, the replacement rate of the short-term IB and of the SSP attains, respectfully, 51 per cent and 53.7 per cent of the reference wage, which is above the minimum level of 45 per cent prescribed by the Code. If, however, the calculation were made without the CTC, the replacement rate of both the short-term IB (39.15 per cent) and the SSP (42.55 per cent) would not attain the minimum level prescribed by the Code. The Committee notes that the amount of the CTC is composed of different elements and depends on the gross annual family income of the beneficiary. It would like the Government to show in its next report how the weekly rate of the CTC is calculated for the standard beneficiary with gross annual family income equal or higher than the gross annual wage of an ordinary adult male labourer determined under Article 66 of the Convention.

(b) The 39th report on the European Code of Social Security indicated that on 3 May 2007 the Welfare Reform Act was given Royal Assent, bringing into law a number of reforms designed to enable people to come off benefit and move into work. The principal reform measure replaces IB with a new benefit to be introduced from 2008 called the Employment and Support Allowance (ESA). New customers will go onto an assessment phase rate of the ESA for 13 weeks while their medical condition is assessed. The majority of customers, those who should be able to make steps to return to work, will receive a work-related activity component on top of the basic rate after the first 13 weeks. This component can be subject to sanctions if the claimant does not engage in the conditionality requirements without good reason. Those with the most severe health conditions will receive the support component, which will be payable at a higher rate and free of any requirement to engage in work-related activities. An individual’s eligibility for incapacity benefits is assessed through the reviewed personal capability assessment (PCA) process which identifies people who are capable of taking part in work-related activity and the support required to help them get back to work, as well as those who are so limited by their illness or disability that it would be unreasonable to require them to undertake any form of work-related activity in the foreseeable future. PCA refocuses physical function descriptors and scores to better reflect the activities and functional capability that a reasonable employer would expect of his or her workforce and develops a new element to the assessment, the work-focused, health-related assessment, focusing on the health‑related barriers to work facing the customer, and the health interventions and workplace adaptations that might help that person return to work. The revised assessment will begin being used in 2008 alongside the new ESA. To further encourage a move into paid employment among people claiming incapacity benefits, a new Pathways to Work package was introduced, with national roll-out scheduled for completion in 2008. This package includes: a series of mandatory work-focused interviews; programmes designed to boost claimants’ prospects of being able to work; and increased financial incentives for individuals to enter paid employment. The Return to Work Credit (RTWC) is one of the main innovative components of the package: it is an earnings supplement available to incapacity benefit recipients who move into paid work. Payable at £40 per week, for a maximum of 52 weeks, it is available to those who have been receiving benefits for at least 13 weeks, have found a job of not less than 16 hours, and do not receive earnings in excess of £15,000 per annum. In view of the large number of innovative features of the new legislation, most of which will take effect in 2008, the Committee would be grateful if the Government would indicate in its next report, how these measures will affect the application of each of the Articles of Part III of the Convention. Please also provide the calculation of the level of the new ESA.

Part IV (Unemployment benefit). In relation to the Committee’s comments concerned with the low rate of the contribution-based jobseekers’ allowance (JSA), the Government responds in the 39th report on the European Code of Social Security, that social security benefits in the United Kingdom are paid at a flat rate, in that they are not indexed to the claimant’s previous income. The benefits are uprated annually in line with prices. This means that the purchasing power of the benefit remains the same year-on-year. Earnings, on the other hand, in a healthy economy tend to increase by more than the rate of inflation. People in work therefore see their standard of living improve year-on-year. Thus, over a period of time there is a tendency to see benefit rates fall behind average earnings but this does not mean that the benefit claimant is getting poorer; simply that their standard of living is remaining constant. The Government believes that benefit rates are pitched at the right level – enough to cover essential needs without encouraging benefit dependency. For those whose needs are greater, the United Kingdom has a wide range of means-tested social assistance benefits that guarantee that no person should live in poverty.

While taking due note of the Government’s statement, the Committee would like to remind that the Convention obliges the member States to maintain social security benefits that are paid at a flat rate, as in the United Kingdom, at the level at least equal to the minimum level laid down in its article 66. Notwithstanding this obligation, since the introduction of the contribution-based JSA in 1998 its rate has never attained the minimum prescribed by the Convention. The 2006 report of the Government also shows that the contribution-based JSA for a standard beneficiary (man with wife and two children) increased by the amount of the CB and the CTC represents only 41 per cent of the wage of an ordinary adult male labourer (£290 per week) and thus falls short of the minimum level of 45 per cent required by the Convention. Recalculated without the CTC, the amount of the contribution-based JSA represented in 2006 was only 27.13 per cent down from 40.04 per cent it attained in 2001. In absolute figures, the contribution-based JSA has increased over the five-year period covered by the detailed report (2001–06) from £53.05 to £57.45 or by 8.3 per cent, while the Retail Price Index has grown by 12.8 per cent and the index of earnings by 16.13 per cent. The Committee is concerned over the fact that the rate of the contribution-based JSA, which the Government considers to be pitched at the right level is consistently kept lower than the minimum standard established as far back as 1952, and does not even catch up with the growth of inflation and cost of living in the country. The Committee finds that the traditional logic and principles of social insurance are being reversed when persons entitled to contribution-based benefits receive benefits so low that they would be better off on social assistance.

Part V (Old age benefit). (a) Article 28(a) (Level of benefit). According to the 2006 report, the weekly rate of retirement pension for a man with 30 qualifying years would constitute 69 per cent of a full weekly pension (payable after 44 years’ contribution) and would thus amount to £58.13 plus £34.85 in respect of a wife of pension age. The resulting amount of £92.98 would represent 32.06 per cent of the reference wage (£290.00 per week). The Committee observes that this rate of retirement pension is far below the minimum level of 40 per cent prescribed by the Convention. It would therefore ask the Government to include in its next report, updated calculation of the rate of the old-age benefit for a standard beneficiary – man with wife of pension age without children who do not receive any child or family benefit.

(b) Reform of the state pension system. The 39th report on the Code refers to the Pensions Act 2007, which puts into law the reforms to the state pension system to take effect from 2010 and creates a new scheme of personal accounts with automatic enrolment, which will provide from 2012 on a simple way for people to save more and to take personal responsibility for the income they want in retirement. In a band of earnings of between around £5,000 a year and £33,000 a year, employees will contribute 4 per cent to the new scheme, employers – 3 per cent, and a further 1 per cent will be contributed in the form of normal tax relief. Up to 10 million people could be saving in a personal account and by retirement, their pension funds could be worth up to 25 per cent more because of lower charges. Reforms of the state pension system reduce the number of qualifying years needed to receive a full basic state pension (BSP) from 39 for women and 40 for men to 30 years for both. The state pension age will be gradually raised in line with gains in average life expectancy. The state pension age for women is due to rise from 60 to 65 between 2010 and 2020, to equalize with men’s state pension age. There will be a subsequent rise, between 2024 and 2046, to 68 for both men and women to reflect increasing longevity in society and secure the financial stability and sustainability of the state pension system for the long term. Annual cost-of-living increases in BSP will be linked with earnings rather than prices. By 2050, the BSP could be worth twice as much as if it had been linked to prices. The state pension will better reflect the different ways in which people contribute to society and will become fairer to those with caring responsibilities, who tend to be women. This will be achieved by abolishing the initial contribution conditions to the BSP, so that caring for children or the severely disabled will build their entitlement without having to make a minimum level of contributions, as well as by introducing a new weekly credit for those caring for children and a new contributory credit for those caring for severely disabled people for 20 hours or more per week. Anyone who has been in employment or caring throughout their working life could receive £135 a week at retirement in state pensions – which is £20 a week above the guaranteed income level. In 2010, 70 per cent of women reaching state pension age will be entitled to a full BSP, compared to 30 per cent now. By 2025, over 90 per cent of women and men reaching state pension age will be entitled to the full BSP – compared to about 80 per cent without reform.

The Committee observes that the above reform measures are taken with a long-term perspective in mind and will enter into force from 2010 on. In the meantime, it would like the Government to continue to provide information on the new developments in the pension reform, indicating, in particular, in respect of the standard beneficiary, the part of the replacement income in retirement which in the forecasted timeframe will be provided by the BSP and the second state pension, and the part which is expected to be supplied from the savings in the personal account.

Part X (Survivors’ benefit). (a) Article 62(a). The Committee notes that, in addition to the CB, the calculations made in the 2006 report include the CTC (£78.69 for both children). With the addition of the CTC, the replacement rate of the Widowed Parent’s Allowance (WPA) attains 48.6 per cent of the reference wage, which is above the minimum level of 40 per cent prescribed by the Convention, while, without the CTC, this rate would attain only 35.53 per cent The Committee notes that the amount of the CTC is composed of different elements and depends on the gross annual family income of the beneficiary. It would like the Government to show in its next report how the weekly rate of the CTC is calculated for the standard beneficiary with gross annual family income equal or higher than the gross annual wage of an ordinary adult male labourer determined under Article 66 of the Convention.

(b) Article 63, paragraphs 1(a) and 2(a). According to the 2006 report, the weekly rate of widow’s benefit is £84.25 basic WPA. To receive 100 per cent basic rate WPA, the late husband must have had qualifying years for about 90 per cent of the years in his working life. If the number of qualifying years is less than the number needed for a 100 per cent basic rate, the allowance is reduced accordingly; no allowance is payable if the number of qualifying years is less than a quarter of the number needed. The Committee would like to know how this condition might affect the level of benefit of a widow whose late husband had 15 qualifying years out of, for example, 25 years of working life, or the payment of a reduced benefit when he had only five such qualifying years.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee took note of the information supplied by the Government in 2000 and 2001 in the reports on the Convention, as well as in its annual reports on the application of the European Code of Social Security, which have provided replies on a number of points raised in its previous comments. It has also noted the Government’s explanations concerning the new social security measures introduced by the Health Act, 1999, the Welfare Reform and Pensions Act, 1999, the Child Support, Pensions and Social Security Act, 2000, and the Health and Social Care Reform Act, 2002. The Committee would like the Government to provide additional information on the following points.

Part IV (Unemployment benefit). 1. Article 22 (in relation to Articles 66 and 67). With reference to its previous observation of 1998, the Committee notes that the great majority of claimants of unemployment benefit receive the income-based Jobseekers’ Allowance (JSA), the level of which is far greater than the replacement level established by the Convention, while only 14 per cent of the claimants receive the contribution-based JSA, which does not attain this level. In order to better appraise the situation, the Committee would like the Government to supply the information requested under Article 76, Title IV, of the report form for the Convention, indicating in particular, with respect to conditions of entitlement to the income-based JSA mentioned in section 3(1)(a) and (e) of the Jobseekers’ Act, how the "applicable amount" is determined in view of the requirements of Article 67(b) of the Convention, and how protection is ensured to a claimant whose partner, while working 24 hours a week or more, receives wages insufficient to maintain the couple "in health and decency", as required by Article 67(c) of the Convention. As regards the contribution-based JSA, the Committee notes that from April 2002 its rate for persons aged 25 or over has been increased from £53.05 to £53.95. It would like the Government to continue to supply information on the measures taken to increase the level of the contribution-based JSA at least to the minimum replacement level calculated in accordance with Article 66 of the Convention. Please indicate also the number of persons receiving the income-based JSA and the contribution-based JSA in comparison with the total number of unemployed in the country.

2. Misconduct. With reference to its observation, the Committee recalls that paragraph 39108 of the Adjudication Officer’s Guide (AOG) contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes that in the new wording of paragraph 34108 of the Decision Makers Guide (DMG), which has replaced paragraph 39108 of the AOG, this general guidance has been deleted and replaced by the provision stipulating that "an act or omission by a claimant which could have been avoided can be misconduct". To ascertain it, in the practical example of lateness for work, "the test is whether the lateness was preventable, or whether there was a failure on the part of the claimant to take care to attend at the proper time. Lateness which is outside the claimant’s control does not amount to misconduct. Lateness which results from a lack of care to take steps which would ensure attendance at the proper time does amount to misconduct." It appears from the new wording of this paragraph that the question of whether the claimant’s wrongdoing was deliberate, and therefore amounted to wilful misconduct sanctioned under the Convention, is substituted by the question of whether, in fact, it was preventable by the claimant by taking due care. The Committee observes in this respect that while prevention, by definition, will always constitute deliberate and wilful behaviour, failure to prevent wrongdoing, as well as failure to take due care, might not necessarily be wilful. For example, lateness which was caused by the unforeseen difficulty in finding the address of a new place of work, the location of which may have been poorly explained by the employer, could in principle have been prevented had the claimant taken care to give himself more travel time, but in no case such lateness would amount to deliberate misconduct. Similarly, in the logic of paragraph 34117 of the DMG, the situation where the claimant "reasonably, but mistakenly, believed" that the new place of work was situated at another address, would not be wilful misconduct, even though he might have taken additional care to double check the accurateness of the address, whereas the situation where the claimant "wilfully disobeyed a reasonable order by an employer or other supervisor (to come to the new place of work at a certain time), this will usually be misconduct." These examples of contradictory decisions which may be taken in application of guidance contained in paragraphs 34108 and 34117 considering preventable but non-deliberate lateness as misconduct in the first case and as not misconduct in the second case, show that the test of preventability linked to the duty of care is but another method used in the DMG to determine the degree of negligence or carelessness at which even non-deliberate wrongdoing could be considered as misconduct. "Whether negligence or carelessness is misconduct is a matter of degree - instructs the decision maker paragraph 34149 of the DMG, - if it was deliberate it is misconduct. Otherwise it depends on: (1) the responsibility, care and skill expected in the job; and (2) the seriousness of the act or omission; and (3) the extent of the claimant’s blame." The Committee observes that while the DMG in many instances draws a clear distinction between deliberate and non-deliberate misconduct of the claimant, such as negligence and carelessness, it nevertheless requires the decision-makers to apply sanctions equally in those cases where misconduct, in fact, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It is in judging this otherwise non-deliberate behaviour of the claimant as "particularly careless" to the extent that it can be considered deliberate, as explained by the Government in relation to the example in paragraph 34109 of the DMG, that the decision-makers face the risk of sanctioning with equally fervent behaviour which, although faulty for the purpose of termination of employment relations by the employer, may not amount to "wilful misconduct" for the purpose of the suspension of the unemployment benefit by the public authority responsible for provision of protection against unemployment on conditions laid down by the Convention. The Committee considers that such risk could be avoided if the decision-makers, in judging misconduct by such criteria as negligence, carelessness or preventability, would first of all be required to establish the deliberate (wilful) character of the claimant’s wrongdoing, so as to distinguish, as was the very purpose of the modification of paragraph 34108 of the DMG in the Government’s wording, the "circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care". It therefore once again expresses the hope that the Government will give further consideration to clarifying the wording of the relevant paragraphs of the DMG, so as to limit the resulting decisions of suspension of unemployment benefit only to cases of misconduct constituting wilfulness, as provided for by Article 69(f) of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government’s attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In its latest reports, the Government continues to use for benefit calculation this now largely obsolete and fictitious minimum wage, which amounted to £165.59 per week in 2000 and to £171.22 in 2001. It indicates however that, since 1 April 1999, the national minimum wage was introduced, which for workers aged 22 or over corresponded from 1 October 2000 to £144.30 and from 1 October 2001 to £159.90. It appears from comparing these figures that this real national minimum wage is quickly closing up on the fictitious reference minimum wage of the engineering labourer, the difference in fact decreasing from £21.29 in 2000 to only £11.32 in 2001. On the other side, the fictitious reference wage is increasingly falling behind real average wages of men in manufacturing, which grew from £441.70 in April 2000 to £463.90 in April 2001, according to the ILO Bulletin of Labour Statistics 2002-03 (page 139). In the light of these trends, where the reference wage moves towards the lowest reference point provided by the national minimum wage and away from the average earnings in the industry in question, its further use might give an increasingly distorted picture of reality for the purpose of establishing international comparisons of the replacement levels provided by the United Kingdom’s social security benefits in relation to the minimums fixed by the Convention. It becomes evident already in comparing the situation of the United Kingdom to that of the Isle of Man where the JSA scheme and the amounts payable are the same but the reference wage is much higher as it represents not the minimum but the average wage of the ordinary adult general labourer (£219.30 for a 37-hour week from 1 September 2000). The Committee wishes to point out that such comparisons of the level of countries’ compliance with the minimums fixed by Article 66 of the Convention will be meaningful only if the reference wage used is equal to the wage of an ordinary adult male labourer selected in accordance with paragraph 4 or 5 of this Article. Moreover, this wage shall be recalculated anew each time the Government is called to provide updated statistics on the level of the benefits, that is every five years when it is submitting a detailed report on the application of the Convention. Thus, if the Government wishes to continue to select an ordinary adult male labourer from the mechanical engineering industry in accordance with paragraph 4(a) of Article 66, it has to determine the wage of the engineering labourer, averaged for different regions, on the basis of the currently applicable rates of wages for normal hours of work fixed by collective agreements, regulations or custom, including cost-of-living allowances, as stipulated in paragraph 7 of this Article. According to Title I under Article 66 of the report form on the Convention, the data shall be given for the same time basis (month, year) as used for calculating the benefit and the family allowance and for which the most recent statistics are available within the period covered by the report. These very precise requirements of the Convention make it clear that the reference wage of an ordinary adult male engineering labourer calculated for the year 2001, for example, might not necessarily coincide with the adjusted minimum wage in mechanical engineering established 15 years ago, or, for that matter, with any other minimum wage established at the industry or national level. The Committee is therefore bound to conclude that the method presently used by the Government for determining the reference wage provides only an approximation which does not allow to clearly ascertain whether the rate of the benefit for a standard beneficiary attains the level prescribed by the Convention. In the light of these explanations, it would like the Government to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention and to base the calculation of the benefits’ level in its next report on the reference wage of a standard beneficiary established according to one of the methods offered by the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Part IV (Unemployment benefit). In its previous comments, the Committee has been questioning certain provisions authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by wilful misconduct. It referred in particular to examples of misconduct in the Adjudication Officer’s Guide (AOG) where it was caused not by deliberate acts of the claimant, but rather by his or her negligence or carelessness. For example, claimants who were accidentally late for work may have been found guilty of misconduct, even if there was no deliberate intention to be late (paragraph 39108 of the AOG). The Committee has requested the Government to modify the Guide so as to bring it in line with the adjudication officers’ case law sanctioning in practice only wilful misconduct in accordance with Article 69(f) of the Convention.

In its report of 2000, the Government agreed that in this context "wilful" was tantamount to "deliberate" and accepted that paragraph 39108 of the AOG did not properly distinguish between circumstances that were beyond the claimant’s control and circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care. Lateness for work should only constitute misconduct if there was evidence that the circumstances which caused it were within the claimant’s control. The Government was therefore grateful to the Committee for drawing the ambiguity of paragraph 39108 to its attention, and undertook to issue an appropriate amendment at the earliest opportunity. In its report of 2001, the Government indicated that the former AOG has been replaced by the Decision Makers Guide (DMG), in which the wording of the corresponding paragraph has been amended.

The Committee recalls that paragraph 39108 of the AOG contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes with satisfaction that in the new wording of paragraph 34108 of the DMG, which has replaced paragraph 39108 of the AOG, this general guidance has been deleted, thus precluding decisions which would tend to qualify as misconduct non-deliberate and accidental wrongdoing of claimants. The Committee raises a number of other points in the request addressed directly to the Government.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its previous comments, the Committee notes the information provided by the Government in reply to the questions raised in its direct request of 1997, in particular concerning Part XII of the Convention, as well as statistics on the amount of the old-age benefit (Part V) for a standard beneficiary.

Part III (Sickness benefit) of the Convention. The Committee notes from the Government's reply to its direct request of 1997 that few employers have yet taken up the option available since April 1997 not to operate the Statutory Sick Pay scheme because it would mean changing their payroll systems. It hopes that the Government would continue in its future reports to provide information on any developments in this respect.

Part IV (Unemployment benefit) of the Convention, Articles 20 and 24 (in relation to Article 69). 1. Suitable employment. In previous comments the Committee noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept to which Article 20 of the Convention refers) was replaced by the apparently more restrictive concept of disqualifying a person for refusing employment notified by the employment service "without good cause", which was carried forward into the jobseekers' legislation (section 19(6)(c) of the Jobseekers Act 1995). In view of the fact that unemployed persons are authorized during a limited period of one to 13 weeks to refuse to seek or accept any employment which does not correspond to their usual occupation and for which the level of remuneration is lower than they are accustomed to receiving (section 6(5) of the Act and Regulation 16 of the Jobseeker's Allowance Regulations 1996), the Committee expressed the hope that the Government would indicate the measures taken or contemplated to ensure that, in all cases covered by Article 20 of the Convention (in relation to Article 69), unemployment benefit is paid at least during the minimum period of 13 weeks within a period of 12 months or in each case of suspension of earnings, in accordance with Article 24 of the Convention.

In the report on Convention No. 44, the Government assures the Committee that there is no question of the jobseeker's allowance being withheld unreasonably. The Employment Service acts responsibly, and does not set out to offer people obviously inappropriate jobs; the issue of the "suitability" of an employment offer would also have to be taken into account in establishing whether a refusal of such offer was without good cause. In that respect, the Government believes that newly unemployed people should be given a reasonable chance of returning to their former type of work and rate of pay. There is therefore a "permitted period" from one to 13 weeks during which they can refuse other types of work and work which pays less than they used to receive. According to Regulation 16(2), in determining the length of a permitted period, an adjudication officer must take into account the jobseeker's usual occupation and any relevant skills or qualifications which he has, the length of the period during which he has undergone training relevant to that occupation, the length of the period during which he has been employed in that occupation and the period since he was so employed, and the availability and location of employment in that occupation. A claimant whose previous "usual occupation" had been of only short duration has a comparatively precarious connection with the labour market, and it would not be in his own interest to hold out for 13 weeks for an occupation and rate of pay which in the reality of his circumstances will become unattainable after a significantly shorter time. It is therefore appropriate that the length of a permitted period should continue to be determined by an independent adjudication officer. Furthermore, the Government refers to other possibilities for a jobseeker to restrict his availability for employment outside the permitted period providing he has reasonable prospects of securing employment notwithstanding those restrictions in the light in particular of his skills, qualifications and experience, the type and number of vacancies within daily travelling distance from his home and the length of time for which he has been unemployed (Regulations 8, 9 and 10). The Government believes that these safeguards offer adequate protection to claimants. It also states that while records are not kept on the number of claimants with a permitted period of less than 13 weeks, it is unlikely to be many.

The Committee notes this information with interest. It observes in particular that, in relation to the notion of "suitable employment" referred to in Article 20 of the Convention, the possibility, under the permitted period of up to 13 weeks provided for in Regulation 16 of the Jobseeker's Allowance Regulations 1996 for a jobseeker to restrict his availability for employment to his "usual occupation" with the same level of remuneration ensures during this period a sufficient degree of protection to the person concerned. The criteria taken into consideration under Regulation 16(2) in the determination by an adjudication officer of the duration of the permitted period are in line with those normally used in assessing the suitability of employment. Moreover, after the permitted period and until the expiration of six months from the date of claim, jobseekers may also restrict their availability for employment by placing restriction in particular on the level of remuneration, providing they can show that they have reasonable prospects for securing employment notwithstanding those restrictions (Regulations 8 and 9). The Committee notes however that the decisions concerning the duration of the permitted period, as well as the employability of a jobseeker in the light of the restrictions made, are placed under the responsibility of adjudication officers, who thus have broad discretion. It would therefore like to be informed on whether new guidelines have been drawn up for the adjudication officers since the entry into force of the jobseekers' legislation on the above-mentioned matters (availability for employment). If so, it would like the Government to supply a copy of such guidelines, as well as to provide statistics on the number of jobseekers to whom a permitted period was granted in relation to the total number of newly unemployed. Furthermore, in view of the Government's statement under Convention No. 44 that the Employment Service does not offer people inappropriate jobs, the Committee would like the Government to indicate in its next report the criteria taken into consideration by the Employment Service in making concrete offers of employment to the jobseekers concerned.

2. Actively seeking employment. The Committee recalls that in the year to 31 March 1995 the number of disallowances pronounced by adjudication officers for failure to seek work actively was 21,460, which, according to the Government, was a comparatively modest figure taking into account that it constituted less than 1 per cent of the overall level of claimant unemployment in the year in question and that a claimant could incur more than one adverse decision in a year. It notes, however, that in the subsequent periods the number of adverse decisions on the actively seeking employment question has increased substantially to attain 32,274 in 1996-97 and 63,336 in 1997-98. According to the Government, the rise can be explained by the fact that jobseekers should now be interviewed about their job search activity each time they attend, which has increased the likelihood that instances of apparently insufficient job search are identified and submitted to adjudication. In addition, in 1997-98 the proposed terms of 3,538 jobseeker's agreements were also referred to adjudication. The Committee would like the Government to continue to supply updated statistical information on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons in comparison with the total number of jobseekers, as well as on the number of appeals lodged against the adverse decisions of adjudication officers and their outcome.

3. The Committee recalls that in the comments of November 1996 the Trades Union Congress drew attention to the possible inconsistency between the incapacity for the work test adopted in 1995 and the availability for the employment test under the Jobseekers Act, indicating that "disabled people are increasingly concerned that they will fall between a tighter incapacity test, which denies them Incapacity Benefit, and inability to meet the terms of the new availability for the work test in JSA". The TUC mentioned in particular three categories of people which may be affected: (i) those with conditions not recognized by the Incapacity Benefit test of incapacity; (ii) those with conditions which are not in any way incapacitating, but which do lead to their placing restrictions on their availability -- someone with sickle cell anaemia, for instance, should not be required to be available for work in cold, wet conditions, as this could bring on a crisis; (iii) people with mental health problems which may make them seem reluctant to apply for jobs, and thus not be available for work. In its reply of 5 December 1996, the Government stated that an Incapacity Benefit decision that someone is capable of work automatically applies to JSA. There is therefore no possibility that people can fail to qualify for both benefits on capacity grounds. Moreover, JSA legislation specifically provides that jobseekers may restrict their availability to certain types of employment provided that the restrictions are reasonable in the light of their physical or mental condition. The Committee takes note of this information.

4. Misconduct. In its previous comments in connection with the observations formulated by the TUC in 1995 and 1996, the Committee raised a number of questions concerning the provisions of the social security legislation authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by the wilful misconduct. The Committee notes from the Government's report that the provisions in question have been carried over to the Jobseekers Act and are now incorporated in section 19(1), (3) and (6)(a) of this Act prescribing suspension of benefit from one up to 26 weeks where the claimant has lost his employment as an employed earner through misconduct, the actual period in each case being at the discretion of the adjudication officer, who makes the decision in accordance with Regulation 70 of the Jobseeker's Allowance Regulations 1996 and the relevant adjudication officers' guidance on the interpretation of misconduct ("Employment lost through misconduct AOG 39060-39219. Vol. 6, Amendment 5, January 98"), a copy of which was supplied by the Government.

As regards the interpretation of "misconduct", the Government confirms that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. In the Government's view, in this context "misconduct" will always in effect amount to wilful misconduct and will not include, within the meaning of section 19 of the Act, certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. Stating that in practice no distinction can be drawn between "misconduct" and "wilful misconduct", and that the question of whether an employee has received a warning prior to dismissal is irrelevant, the Government refers to the attached guidance for the adjudication officers on the interpretation of misconduct.

According to this guidance, the adjudication officer decides what is misconduct (39075). The word "misconduct" is not defined in social security legislation, but taking into account the relationship of employer and employee and rights and duties of both, misconduct must be conduct that can fairly be described as blameworthy and wrong (39105). The adjudicating authorities also decide whether the claimant's actions are misconduct (39109). Even when claimants have not deliberately done anything wrong, this can still amount to misconduct. For example, claimants who were accidentally late for work may well be guilty of misconduct, even if there was no deliberate intention to be late (39108). Furthermore, it does not matter that the employer has not described the claimant's actions as misconduct. For example, an employee would have lost his employment through misconduct if it becomes clear that he had been particularly careless (39109). Whether negligence or carelessness is misconduct is a matter of degree. If it was deliberate it is misconduct, but otherwise it depends on the responsibility, care and skill expected in the job, and the seriousness of the act or omission, and the extent of the claimant's blame to be established by the adjudication officer (39149). Besides insolence, quarrelling, sculling or fighting and other forms of offensive behaviour which are misconduct (39178), the use of bad language may also be misconduct, particularly when it is used in circumstances when it is known, or might be expected, to give offence to others (39179).

The Committee observes that the interpretation of "misconduct", within the meaning of section 19 of the Jobseekers Act, given by the above-mentioned guidance, draws a clear distinction, illustrated with concrete practical examples, between deliberate (wilful) and non-deliberate misconduct of the claimant, such as negligence and carelessness, which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It also observes that said guidance obliges the adjudication officers to apply sanctions equally in cases where misconduct was not in fact wilful misconduct, leaving the determination of the severity of the sanction imposed at their discretion. The Committee notes however the Government's statement that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. It therefore hopes that in the light of this statement the Government will reconsider the matter and will modify the adjudication officers' guidance, so as to ensure that suspension of unemployment benefit is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention.

The Committee further notes that, under section 19(1), (2) and (5)(c) of the Jobseekers Act, suspension of benefit is also prescribed in circumstances where the claimant has lost his place on a training scheme or employment programme through misconduct, the duration of sanction in this case being fixed by Regulation 69 of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to specify whether the same rules for determining what is misconduct are applied in this case, taking into account that the above-mentioned guidance covers loss of employment and does not deal with situations where misconduct has led to loss of a place on a training scheme or employment programme. If not, please indicate whether a special guidance exists for such cases and supply a copy of it.

Finally, in relation with the TUC's comments, the Committee notes with interest the statement by the Government that payment of benefit is no longer suspended while a case of misconduct is under consideration. If it appears that a claimant may have lost his employment through misconduct, payment of the jobseeker's allowance continues in full until an adjudication officer determines the question. The Committee would like the Government to supply a copy of the provision establishing this rule.

5. The Committee notes that, according to sections 1(a) and 4(1)(a) of the Social Security Act, 1998, the functions of adjudication officers are now transferred to the Secretary of State and the functions of social security appeal tribunals are transferred to unified appeal tribunals constituted under this Act. Under section 8(1)(a) and (c) of this Act, it shall be for the Secretary of State to decide any claim for a relevant benefit which includes a jobseeker's allowance. Regulations to be adopted under sections 21 to 23 of the Act may further provide for suspending payments of a relevant benefit, in whole or in part, in prescribed circumstances as well as for failure to furnish information. Finally, under section 81 of the Act, the Secretary of State shall prepare and lay before each House of Parliament a report on the standards achieved by him in the making of decisions against which an appeal lies to an appeal tribunal. The Committee would like the Government to explain the implications that these new arrangements might have on the consideration of the claims for jobseeker's allowance and to supply a copy of the Regulations to be adopted under the Act as well as a copy of the above-mentioned report of the Secretary of State, once these documents are available.

Article 24, paragraph 3. The Committee notes that Regulation 46(2) of the Jobseeker's Allowance Regulations specifies that the number of waiting days is three, but that, according to the Government's report this number was increased to seven by section 2 of the Jobseeker's Allowance (Amendment) Regulations, 1998 (No. 71), which however were revoked on 1 June 1998 by the Social Security (Miscellaneous Amendments) (No. 4) Regulations, 1998 (SI 1998, No. 1174). The Committee would like to receive a copy of these later Regulations. It would also like the Government to indicate, with reference to corresponding provisions, how the term "day" is defined for the purposes of Regulation 46(2) and, in particular, whether the provisions of Regulation 47(4), as amended by section 14 of the Jobseeker's Allowance and Income Support (General) (Amendement) Regulations, 1996, No. 1517, are applicable in this case.

Part X (Survivors' benefit). In view of the concern of the TUC that the Government may intend to abolish social insurance survivors' benefits, the Committee would like the Government to state its position in this respect in the light of the corresponding provisions of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). With reference to its direct request of 1996, the Committee notes the information on the method of uprating the nationally negotiated minimum wage of an engineering labourer for the year 1987 which is used by the Government to determine the reference wage of an ordinary adult male labourer for the purpose of calculating the level of periodical benefits. It recalls that comparing the current rate of benefit to the now largely obsolete minimum wage of 1987, adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period, would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. The Committee notes however that in its report on Convention No. 44 the Government expresses the intention to introduce a national minimum wage as soon as convenient. It would like the Government to keep it informed on any progress achieved in this respect.

[The Government is requested to report in detail in 2000.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its previous comments, the Committee notes the information provided by the Government in the reports on Conventions Nos. 102 and 44. It also notes the new comments on the application of the Convention by the Trade Unions Congress (TUC) received by the Office on 9 November 1998.

With respect to Part IV (Unemployment benefit), the TUC draws attention to the fact that, according to the statistics given in the Government's report, a man with a dependant wife and two children, who is not entitled to a means-tested jobseeker's allowance which amounts to 71.89 per cent of the standard wage plus family benefit, would receive contributory jobseeker's allowance worth only 41 per cent of the standard wage plus family benefit. The contributory jobseeker's allowance is below the Convention's minimum standards (45 per cent of the reference wage for a standard beneficiary). According to the TUC, there are several reasons why such a man might not be entitled to means-tested jobseeker's allowance. In particular, a worker who has been made redundant, and who has received 8,000 or more in compensation, would not be entitled to a means-tested allowance. For a person aged under 25 the situation would be worse, as he would receive a lower rate of benefit.

The Committee notes that, according to the information provided by the Government, the rules for the calculation of the income-based jobseeker's allowance, in most cases, are identical to those for income support. The amount of the income-based allowance varies depending on the age of the claimant and whether he or she is single or has a partner and children, and, where appropriate, mortgage interest payments. If the claimant has other income, benefit will in most cases be reduced by the amount of that income. It will also be reduced if the claimant has capital between 3,000 and 8,000. The Government adds that there will be no entitlement if this capital exceeds 8,000 or if the claimant's partner works 24 hours a week or more. The Committee notes in this respect that, according to section 12 of the Jobseekers Act 1995, in relation to a claim for jobseeker's allowance, the income and capital of a person shall be calculated or estimated in accordance with prescribed rules and that circumstances may be prescribed in which (a) a person is treated as possessing capital or income which he does not possess; (b) capital or income which a person does possess is to be disregarded; (c) income is to be treated as capital; (d) capital is to be treated as income. Section 13 of the Act further stipulates that no person shall be entitled to an income-based jobseeker's allowance if his capital, or a prescribed part of it, exceeds the prescribed amount, and that the income and capital of any member of the claimant's family shall be treated as the income and capital of the claimant. Detailed provisions implementing the above sections of the Act are included in the Jobseeker's Allowance Regulations 1996.

The Committee recalls in this respect that Article 67 read in conjunction with Article 22, paragraph 2, of the Convention allows the reduction of unemployment benefit where the beneficiary or his family has financial means under certain conditions. In particular, Article 67 provides that the rate of the benefit, which shall be determined according to a prescribed scale, may be reduced only to the extent by which the other means of the family of the beneficiary exceed substantial amounts prescribed by the legislation or fixed by the public authorities, so that the beneficiary should be allowed to have a reasonable amount of means of his own other than unemployment benefit. The total of the benefit and any other means after deduction of the substantial amounts shall be sufficient to maintain the family of the beneficiary in health and decency and shall not be less than the benefit calculated in accordance with Article 66 (45 per cent of the reference wage taking account of the family allowance paid during the employment and the contingency). In view of the complexity of the legislation and of the Government's statement under Convention No. 44 that in most cases benefit is reduced by the amount of any additional income of the claimant, the Committee would like the Government to supply full information on the manner in which the rules for the calculation of the income-based jobseeker's allowance take into account these provisions of the Convention and, in particular, the requirement that the reduction of the benefit is only authorized when the means of the beneficiary and his family exceed the substantial amounts referred to above. Please also supply the information requested under Article 67, Titles I and II, and Article 76, Title IV, by the report form of the Convention together with statistics on the number of persons receiving the income-based jobseeker's allowance. Furthermore, it would also like the Government to provide statistics on the level of this allowance for claimants under 25 years of age, taking into account that the income-based jobseeker's allowance varies depending on the age of the claimant, as well as to explain how the protection guaranteed by the Convention is ensured with respect of a claimant whose partner, while working 24 hours a week or more, receive wages which are below the level of the substantial amounts and the benefit calculated under Article 67 of the Convention. In addition, the Committee wishes to be informed of any measure taken by the Government to increase the level of the contribution-based jobseeker's allowance. Finally, noting the Government's intention to introduce a national minimum wage as soon as convenient and to make corresponding modifications in the jobseekers' legislation, it expresses the hope that the Government would provide information on any progress achieved in this respect.

The Committee raises a number of other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2000.]

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to its observation, the Committee trusts that the Government's next report will contain full information on the issues raised in its previous direct request, as well as on the following additional points.

Part III (Sickness benefit) of the Convention. Referring to the employers' obligation to pay statutory sick pay to their employees for a period of sickness lasting up to 28 weeks, the Government indicates in its twenty-ninth report on the application of the European Code of Social Security that, from 6 April 1997, employers who pay wages or occupational sick pay to their employees at or above the statutory sick pay rate, are free to decide whether or not to operate the statutory sick pay scheme. This arrangement simplifies employers' administration by eliminating the need to keep two sets of sickness records. At the same time employees' rights to sick pay are protected because the employer has to pay statutory sick pay if his own arrangements are not sufficient. The Committee notes this information. It would like the Government to provide information on the implementation of these measures in practice, including statistics on the number of employers who have thus ceased to operate the statutory sick pay scheme.

Part XII (Equality of treatment of non-national residents), Article 68. The Committee notes, from the Government's report on the Code, that, from October 1996, general entitlement to child benefit has been removed for persons coming from abroad who are subject to immigration control. According to the report, this restriction does not apply to nationals (and their families) of State Contracting Parties to the Agreement on the European Economic Area; workers (and their families) who are nationals of a State with which the Community has concluded an agreement under Article 238 of the Treaty establishing the European Community; refugees recognized under Article 1 of the Geneva Convention relating to the Status of Refugees; or to those who have been granted settled status or given leave to enter or remain in the United Kingdom. Persons from abroad who would be affected by these new rules but who are already receiving child benefit can continue to receive the benefit until their claim is reviewed. The Committee would like the Government to identify and supply the relevant legislative provisions introducing these rules as well as the categories of foreign nationals legally residing in the country that would be affected by them in the light of this Article of the Convention.

[The Government is asked to report in detail in 1998.]

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee takes note of the report and of the various new legislative provisions supplied by the Government.

In reply to the Committee's previous comments, the Government states that it is currently in the process of examining the issues raised very carefully, but at this stage it is not yet in a position to respond in detail to the Committee's request for information. The Government reassures however that it will provide a full and detailed response on all of the issues following a review of its position in the light of the Committee's comments. The Committee takes good note of this statement. It hopes that the Government will not fail to supply a detailed report for its next session containing full information on the important questions raised in its direct requests of 1996 and 1997, as well as any additional information it would like to provide with respect to the comments on the application of the Convention received from the Trades Union Council on 28 November 1996. The Committee recalls in this respect that, in order to be able to examine in detail the Jobseekers Act, which entered into force in October 1996, together with its implementing regulations, which are of a particularly voluminous and complex nature, it should dispose of the full information on the impact of the new legislation on the application of each Article of Part IV (Unemployment benefit) and other relevant Parts of the Convention, including statistics, provided in the manner set out in the report form. It trusts that such information would be supplied in the Government's next report and that it would deal in particular with questions of the definition of suitable employment and disqualification from unemployment benefit, in the light of the Committee's previous comments and the observations made by the TUC.

[The Government is asked to report in detail in 1998.]

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its observation, the Committee draws the Government's attention to the following points:

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (with particular reference to Article 69). 1. In its previous comments the Committee had noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept contained in Article 20 of the Convention) was replaced by the more restrictive concept of refusing employment "without good cause". It had referred in particular to the Social Security Contributions and Benefits Act of 1992, sections 28 and 29 (the latter of which authorizes newly unemployed persons during a "permitted period" of up to 13 weeks to refuse to seek or accept employment which does not correspond to their usual occupation and earnings). The Committee had asked the Government to indicate the measures taken under the legislation then in force to ensure that, in all cases covered by Article 20 of the Convention, the period for which unemployment benefit is provided is at least 13 weeks within a period of 12 months, in accordance with Article 24 of the Convention.

The Committee notes that the Government's report does not contain any new information in this respect but refers to the information supplied under Convention No. 44. The Government has provided the texts of the new Jobseekers Act and of the regulations made thereunder, which raise new questions. The Committee intends to examine in detail the Jobseekers Act, which entered into force in October 1996, together with the implementing regulations, at its next session, when it will have received full information on their impact on the application of each Article of Part IV of the Convention, including on the question recalled above, in the manner set out in the report form of the Convention.

2. In its previous comments, the Committee noted that section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992 provides that a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his "misconduct", whereas Article 69(f) of the Convention only authorizes such a suspension where the contingency has been caused by the wilful misconduct of the person concerned. It therefore requested the Government to provide copies of any relevant administrative or judicial decisions which may shed light on the scope of said section 28(1)(a). In addition, the Committee requested detailed information in reply to the TUC's reference to a number of cases of suspension or disqualification from employment benefit of insured persons who left their employment for reasons that the TUC considered to be legitimate (Article 69(i) of the Convention).

In reply, the Government refers to the Social Security Commissioner's Decisions R(U) 8/57 and 2/77, which have the status of case-law and contain definitions of "misconduct". The Government considers that case-law on the interpretation of "misconduct" shows that a sanction should only be applied if the misconduct was wilful misconduct. As regards cases of disqualification mentioned by the TUC, the Government states that these cases were not identified, and therefore the facts that were available to the adjudication officer in each case are not known. Moreover, the Government is unable to comment on decisions made by independent adjudication authorities.

The Committee takes note of this information. It recalls that by ratifying the Convention a State accepts the obligation to ensure its implementation both in law and practice as determined by the competent bodies, including those which are independent bodies. The Government has thus a duty to supply information on the practical application of the Convention requested by the Committee. The Committee notes, on the other hand, that under Decision R(U) 2/77 the Chief Commissioner defined misconduct as: "conduct which is causally connected, but not directly connected with the employment, and having regard to the relationship of employer and employee and the rights and duties of both, can fairly be described as blameworthy, reprehensible and wrong". The Committee considers from this Decision and from Decision R(U) 8/57, previously communicated by the Government, that the notion of misconduct may also apply to certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f). It is therefore important to know whether an employee dismissed for cause had received a warning prior to dismissal, as repeated misconduct in light of an issued warning would more clearly indicate a level of intent inherent in the notion of wilfulness.

The Committee notes with interest the detailed information concerning the training and monitoring of adjudication officers. It welcomes the guidance given to the adjudication officers on the interpretation of legislation and regulations. It hopes that the competent authority will issue guidelines on the interpretation of misconduct for suspension of unemployment benefit, so as to ensure that such suspension is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention. The Committee hopes that the Government's next report will contain information on progress made in this respect. In addition, the Committee requests the Government to supply information on the application in practice of Article 69(i) of the Convention, as well as on the new comment made by the TUC.

3. In reply to the Committee's previous comments concerning section 57 of the Social Security Contributions and Benefits Act 1992 which subjects the entitlement to unemployment benefit to the requirement that the insured person must be "actively seeking work", the Government indicated in its report of 1995 that the new Jobseekers Act carries forward this requirement with respect to the Jobseekers Allowance (JSA), to be further detailed in regulations. It added that, under the new legislation, the persons concerned must sign a Jobseeking Agreement setting out their plans to find employment and that, besides job search, actions improving employability will also count. The Government has also indicated that, in the year to 31 March 1995, 21,460 claims were disallowed under the previous legislation by adjudication officers because the claimant had failed to actively seek work, but that only about 2 per cent of adverse decisions by adjudication officers on all questions were the subject of an appeal by the claimant to a Social Security Appeal Tribunal. The Committee notes this information, in particular the apparently high number of claims denied for failure to actively seek work. It also notes that under section 1(2)(b) and (c) of the Jobseekers Act, the entitlement to the JSA is subjected, inter alia, to the condition that a claimant "has entered into a jobseekers' agreement which remains in force" and is "actively seeking employment". These conditions are further detailed in Chapters III and V of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to provide detailed information on the implementation of these provisions in practice, as well as to continue to supply up-to-date statistics on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons.

Part V (Old-age benefit). The Committee notes that, according to the rules for the calculation of the state retirement pension explained in the report, full benefit is granted to a beneficiary who has completed, prior to the contingency, a qualifying period of about ninth-tenths of the number of years in the person's working life, which, normally, comprises the period from the beginning of the tax year in which the 16th birthday falls to the end of the tax year in which the 64th (59th for women) birthday falls. If the number of qualifying years is less than the number of years required for a standard-rate pension, a proportionally reduced-rate pension is payable. The Committee understands therefore that the statistics on the amount of the benefit given in the report correspond to a full pension payable to a beneficiary who has completed 44 (for men) and 39 (for women) qualifying years, and not to a pro-rated pension which is achieved after 30 qualifying years. It notes, however, from the statistics contained in the report, that a basic state pension paid after 30 years of contribution would still be above the level prescribed by the Convention. In this situation, the Committee hopes that in the future the Government will provide statistics on the amount of the old-age benefit for a standard beneficiary who has completed a qualifying period of 30 years of contribution or employment, as required by Article 29, paragraph 1(a), of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government's attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In reply, the Government stated that to change the basis of the standard wage for the purposes of Article 66 of the Convention would lead to inconsistency and would have a distorting effect on comparisons. For these reasons it has no alternative but to continue uprating the previous minimum wage, which has always been regarded as the appropriate reference point against which to compare social security benefits, by the increase in the average earnings index for mechanical engineers for the corresponding period.

The Committee notes this information. It wishes to point out in this respect that paragraph 7 of Article 66 provides that the wage of the ordinary adult male labourer shall be determined on the basis of the rates of wages for normal hours of work fixed by collective agreements, by or in pursuance of national laws or regulations, where applicable, or by custom, including cost-of-living allowances if any; where such rates differ by region the median rate shall be taken. Comparing the current rate of benefit to the now largely obsolete minimum wage of 1987 adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. In light of these explanations, the Committee once again expresses the hope that the Government will be able to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention. In the meantime, the Committee would like the Government to supply detailed information on the method currently used to uprate the minimum wage of an engineering labourer, including the figures used for the most recent calculation and their source.

[The Government is asked to report in detail in 1997.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous comments which it has been making for a number of years, the Committee notes the information supplied by the Government in its reports of 1995 and 1996. It also notes the new comments made by the Trades Union Congress (TUC) concerning the application of this Convention, which were received on 28 November 1996. The Committee has decided to examine these comments, as well as the response of the Government which was received on 9 December 1996, at its next session. In addition, the Committee hopes that the Government's next report will contain detailed information on important issues raised in a new direct request.

[(The Government is asked to report in detail in 1997.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's reply to its previous comments and has also examined the texts of laws and regulations supplied with the report. It also notes the comments made by the Trades Union Congress (TUC), which were transmitted by the Government with its communication dated 1 February 1995. These comments relate to the application of Article 69 of the Convention, which was one of the points raised in its previous comments.

Following its examination of the information supplied by the Government and the comments made by the TUC, the Committee wishes to point out the following:

1. Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (particularly in relation with Article 69).

(a) In its previous comments, the Committee noted that section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992 provides that a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his "misconduct", whereas Article 69(f) of the Convention only authorizes such a suspension where the contingency has been caused by the wilful misconduct of the person concerned. It therefore requested the Government to indicate whether the term "misconduct" used in the 1992 Act was interpreted in case-law and in practice as equivalent to "wilful misconduct", as it used to be in the past, according to earlier information provided by the Government.

In its reply, the Government states that in practice decisions to suspend unemployment benefit on the grounds of loss of employment through the misconduct of the person concerned are made on the understanding that the misconduct was wilful. The Committee takes due note of this statement. It notes, however, that according to the explanations provided by the Government, the concept of misconduct can also apply to certain types of carelessness which may justify withholding unemployment benefit because the person concerned has lost his employment through his own avoidable fault. Furthermore, the Committee also notes the comments of the TUC to the effect that section 28(1)(a) of the above Act of 1992 would not always appear to be interpreted in practice within the meaning of the Convention. In these conditions, the Committee requests the Government to provide copies of any relevant administrative or judicial decisions which may shed light on the scope of section 28(1)(a) of the above Act of 1992, and to provide detailed information in reply to the TUC's comments, which also refer to a number of cases of the suspension or disqualification from unemployment benefit of insured persons who left their employment for reasons that the TUC considers to be legitimate but which were not considered to be so by the adjudication officers (Article 69(i) of the Convention). Finally, the Committee requests the Government to indicate whether, and if so under which provisions, in cases where persons have been dismissed on the grounds of an avoidable fault, the suspension of the unemployment benefit is subject to the condition that the worker received a warning prior to dismissal.

(b) The Government recalls that entitlement to unemployment benefit is subject, among other conditions, to the requirement that the insured person must be "actively seeking work" (section 57 of the above Act of 1992), but that the decision to disallow benefit is only taken by the adjudication officers on the basis that the individual concerned has not taken the necessary steps regarded as reasonable in his or her case. It adds, in its report on the application of the European Code of Social Security, that decisions to disallow benefits carry the right of appeal to independent appeal tribunals and that it has not been viable to attempt a specific classification of the reasons for disallowing benefit in such cases. Furthermore, the Government confirms that the regulations issued under section 57(3) of the Social Security Contributions and Benefits Act of 1992 to determine the steps that unemployed persons are required to take in any week in order to be regarded as actively seeking work are still contained in Regulation 12B of the Social Security (Unemployment, Sickness and Invalidity Benefits) Regulations of 1983, as amended. The Committee notes this information. It also notes the text of the guidance transmitted by the Government, which contains the criteria on which adjudication officers have to determine whether the steps taken by unemployed persons to "actively seek" work fulfil the requirements for entitlement to benefit. This guidance is regularly updated as case-law develops in this field. The Committee requests the Government to continue supplying information on any new regulations or developments in this field. It also requests the Government to supply information on the number of cases in which unemployment benefit has been suspended on the grounds that the unemployed person has not taken the necessary steps considered reasonable in his or her case, and on the number of appeals that have been made and their outcome.

(c) The Committee also noted in its previous comments that Regulation 12E, introduced by Regulation No. 1324 of 1989, as well as section 28 of the Social Security Contributions and Benefits Act of 1992, amended the rule whereby unemployed persons could be disqualified from benefit for refusing "suitable employment" (a concept to which reference is made in Article 20 of the Convention), by the apparently more restrictive concept of refusing employment without "good cause". It therefore requested the Government to provide information on the application in practice of the above provisions, and particularly of section 28 of the Act of 1992, which provides for disqualification from receiving unemployment benefit for a period not exceeding 26 weeks, particularly in the following cases: (i) if the unemployed person, "without good cause", has refused or failed to apply for any employment which has been properly notified to him as vacant; and (ii) if he has "without good cause" neglected to avail himself of a reasonable opportunity of employment. In its reply, the Government refers to the above Regulation 12E containing guidance on the concept of good cause for refusing employment. It also states that it is the responsibility of the adjudication officers, who are independent of the officers and Ministers of the Department of Social Security and the Employment Services Agency, to determine the cases in which there is a "good cause" for refusing a job which does not result in the suspension of the unemployment benefit. It adds, in its report on the application of the European Code of Social Security, that representative examples of actual cases involving the operation of Regulation 12E concerning "good cause" for the refusal of employment are unobtainable.

The Committee notes this information. It has also examined the guidance containing the various criteria on the basis of which the competent authorities decide whether or not "good cause" exists. The Committee notes in particular that, under the guidance contained in AOG Vol. 10, which deals with the refusal of employment without good cause, the term "employment" may apply to any gainful employment, including self-employment, although in practice most cases concern employed earner's employment. Furthermore, when deciding upon the legitimacy of the reason, the adjudication officer has to disregard, with the exception, in particular, of the special rules relating to the "permitted period", any matter relating to the level of remuneration of the employment in question, including the fact that the wage offered is lower than that received by most other employees in that occupation.

With particular reference to the "permitted period", the Committee referred in previous comments to section 29 of the above Act of 1992, which authorizes persons who have just become unemployed, for a limited time (without losing their benefit) to limit their search or refuse to accept employment which does not correspond to their usual occupation at a level of remuneration not lower than they are accustomed to receive. The Committee noted that by virtue of Regulation 12F of 1989, the "permitted period" covers a period of from one to 13 weeks depending on the experience and skills of the person and the employment opportunities available. The Committee requested the Government, taking into account Articles 20 and 24 of the Convention, to indicate whether there had been cases in which, in practice, the authorities had limited the application of section 29 of the Act of 1992 to a "permitted period" of less than 13 weeks. In its reply, the Government states that records are not kept on the numbers of claimants who have a "permitted period" of less than 13 weeks, but that it is unlikely to be many since in the majority of cases the full 13 weeks is allowed. The Committee notes this statement and hopes that the Government will be able to take the necessary measures to ensure that, in all the cases covered by the above provisions of the Convention, the duration of unemployment benefit is at least 13 weeks within a period of 12 months.

Finally, in view of the very broad powers of adjudication officers to decide upon the suspension of unemployment benefit, the Committee requests the Government to provide detailed information on the manner in which these officials are trained and monitored.

(d) The Committee notes the information supplied by the Government in relation to the application of section 27(1)(b) of the Social Security Contributions and Benefits Act of 1992 (which contain the same provisions as section 44(1)(b) of the Social Security Act of 1986).

2. Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). The Committee notes the statistics concerning the calculation of various benefits supplied by the Government in its report. It also notes the Government's reply to its previous comments concerning the manner in which the wage is calculated of an ordinary adult male labourer, selected in accordance with Article 66 of the Convention, for the purposes of establishing the rate of the benefit. The Committee requests the Government to continue to indicate in future reports the reference year for both the selected wage rate and the level of benefit provided by the national social security scheme for each of the contingencies corresponding to the Parts of the Convention which have been accepted. It also hopes that the Government will make every effort in future reports to supply statistics on the wage of an ordinary adult male labourer selected in accordance with paragraph 4 or 5 of Article 66 on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987.

[The Government is asked to report in detail by 1 September 1995 at the latest.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the detailed information supplied by the Government in its report and the attached texts of laws and regulations. The Committee also notes, from the information supplied to the Council of Europe in the Government's twenty-sixth annual report on the application of the European Code of Social Security, the various changes which are planned or have been decided upon by the Government respecting sickness insurance, unemployment insurance and old-age insurance. It hopes that the above changes will not affect the proper application of the Parts of the Convention that have been accepted. It requests the Government to provide detailed information in its next report on the implementation of these reforms, as well as information on the new incapacity benefit which will replace sickness benefit and on the jobseeker's allowance.

The Committee also notes the comments made by the Trades Union Congress (TUC), which were transmitted by the Government with its communication dated 1 February 1995 and which concern the application of Article 69(f) and (i) of the Convention, in relation to unemployment benefit (Part IV). Under these provisions, benefit may only be suspended where the contingency has been caused by the wilful misconduct of the person concerned or when the person has left the employment voluntarily without just cause. As these and certain other matters were raised in its previous comments, the Committee has examined them in a new direct request. The Committee therefore requests the Government to refer to the above request.

[The Government is asked to report in detail by 1 September 1995 at the latest.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report containing texts of the new legislation as well as detailed information in reply to its previous comments. Taking into account that the report was received just before the opening of its session, the Committee decided to defer its examination until its next session 1996.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments, the Committee notes the detailed information supplied by the Government in its report. It wishes to draw its attention to the following points.

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (also in relation to Article 69). (a) Under the terms of section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992, a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his misconduct. The Committee recalls the information supplied by the Government in its report for the period 1958-60 which maintains that the term "misconduct" employed by the legislation was interpreted by case law and in practice as equivalent to "wilful misconduct", in accordance with Article 69(f) of the Convention. The Committee would be grateful if the Government would confirm whether this practice is still in force.

(b) The Government states that the requirement to actively seek work in order to be entitled to unemployment benefit was introduced in 1989, in the light of evidence that some unemployment claimants were making little effort to find a job. The introduction of this requirement was aimed to encourage them to go about their job search in a more positive and organized way. Any person claiming unemployment benefit must show that he is both available for work and actively seeking work, which means that he is willing and able to take up a job opportunity immediately as one arises. The Government adds that the reasonable steps that an unemployed person has to take each week to find work will vary from individual to individual. It may mean contacting local employers, answering advertisements in newspapers or making inquiries about possible job offers. It is however recognized that the job opportunities available to some unemployed people may be limited, perhaps due to their age or health problems. Therefore, all an individual's circumstances are taken into account in determining whether the unemployed person has taken reasonable steps to find work. Although some simple record of the job applications made or other steps taken is helpful, an unemployed person is not penalized just because he or she cannot provide proof of them.

The Committee notes this information. It also notes section 57 of the Social Security Contributions and Benefits Act of 1992, and the Social Security (Unemployment, Sickness and Invalidity Benefit) Amendment No. 2, Regulations No. 1324 of 1989, of which Regulations 12B to D specify certain aspects of the requirement to be actively seeking employment. In particular, Regulation 12B lays down that the steps which a person is required to take if he is to be regarded as actively seeking employment shall be those which are reasonable in his case as offer him his best prospects of receiving offers of employment. In this respect, the Committee recalls that Article 20 of the Convention provides that the contingency covered shall include suspension of earnings "due to inability to obtain suitable employment in the case of a person protected who is capable of, and available for, work". According to this provision, the applicant must be both capable of and available for work. It also implies the will to seek work and to accept a suitable job. It should be emphasized in this respect that, although Article 20 of the Convention does not refer explicitly to the requirement to be effectively seeking a job, a positive attitude by the unemployed person is nevertheless expected since, under Article 69(h) of the Convention, the unemployment benefit may be suspended where the person concerned has failed to make use of the employment services placed at his disposal. The Committee therefore hopes that, when evaluating the steps taken by unemployed persons to actively seek employment as a requirement for obtaining unemployment benefit, the authorities responsible for the administration of the unemployment insurance scheme will continue to take into account the obligations deriving from Part IV of the Convention. In this context, the Committee notes that during the period 1989-91, there were 2,135 cases of the suspension of unemployment benefit on these grounds. It requests the Government to supply information on the reasons which gave rise to such suspensions, particularly when these occurred during the minimum duration for the provision of benefits set out in Article 24 of the Convention (13 weeks within a period of 12 months, or 13 weeks in each case of suspension of earnings). It also requests the Government to indicate whether new regulations have been adopted under section 57(3) of the Social Security Contributions and Benefits Act of 1992 and whether guidelines have been issued for the authorities responsible for the administration of the social insurance scheme specifying the way in which the requirement that unemployed persons must be actively seeking employment is to be implemented in practice. If so, it would be grateful to receive the text of such regulations and guidelines.

(c) The Committee notes from the information supplied by the Government in its report on the Convention, and in its 24th report on the application of the European Code of Social Security, that section 12 of the Social Security Act of 1989 amended the rule by which a person could be disqualified from receiving unemployment benefit for having refused suitable employment. Section 28 of the Social Security Contributions and Benefits Act of 1992 provides for disqualification from receiving unemployment benefit for a period not exceeding 26 weeks, particularly in the following cases: under subsection (b) if the unemployed person, "without good cause", has refused or failed to apply for any employment which has been properly notified to him as vacant or refused to accept the situation when offered to him; under subsection (c) if he has "without good cause" neglected to avail himself of a reasonable opportunity of employment. In this connection, Regulation 12E introduced by Regulations No. 1324 of 1989 sets forth certain indications with respect to the criteria to be taken into consideration in determining "good cause".

Furthermore, as stated by the Government in its report, section 29 of the above Act of 1992 provides that persons who have just become unemployed are authorized, for a limited time (termed the "permitted period") to limit their search for employment to their usual occupation at a level of remuneration not lower than they are accustomed to receive. In this respect, the Committee notes that, in accordance with the implementing regulations (Regulation 12F), the "permitted period" covers a period of from one to 13 weeks depending on the experience and skills of the person and the employment opportunities available. In view of the provisions of Articles 20 and 24 of the Convention, the Committee requests the Government to indicate whether there have been cases in which, in practice, the authorities responsible for the administration of unemployment insurance have limited the application of section 29 of the Social Security Contributions and Benefits Act of 1992 to a "permitted period" of less than 13 weeks.

The Committee also requests the Government to supply examples of the application in practice of the provisions of section 28 of the above Act of 1992 and of Regulation 12E, introduced by Regulations No. 1324 of 1989, which replaced the condition concerning the impossibility of obtaining a suitable job by the more general and apparently more restrictive concept of refusing employment (or any similar act) without "good cause". Finally, the Committee requests the Government to supply the text of any new regulations adopted under section 28(5) of the above Act of 1992, and the text of any guidelines which may be issued for the use of the competent authorities to specify the manner in which these provisions are to be implemented in practice.

(d) In its previous comments, the Committee requested the Government to supply detailed information on the implementation in practice of section 44(1)(b) of the Social Security Act of 1986, which amends section 19 of the Social Security Act of 1975, and which provides that an employed earner who has withdrawn his labour in furtherance of a trade dispute but does not fall within section 44(1)(a) is disqualified from receiving unemployment benefit for any day in which his labour remains withdrawn. (Under section 44(1)(a) of the Social Security Act of 1986, an employed earner who has lost employment as an employed earner by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for any day during the stoppage unless he proves that he is not directly interested in the dispute (subject to the provisions of subsection 2).) In its report, the Government states that it does not have information on specific cases where section 44(1)(b) of the Social Security Act of 1986 was applied. However, it confirms that the practical effect of the relevant provisions of the legislation is that a person who has lost his employment because of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for the duration of the strike, unless he can prove that he is not participating in or directly interested in the trade dispute which caused the stoppage; or that he has become a bona fide employee elsewhere; or that his employment has terminated by reason of redundancy.

The Committee notes this information. It would be grateful to be duly informed of the manner in which section 44(1)(b) of the Social Security Act of 1986 has been applied in practice should a case arise.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). The Committee notes the statistics supplied by the Government in its report concerning the calculation of periodical benefits. It notes in particular that the wage of the ordinary adult male labourer for the purposes of Article 66 of the Convention is based on the weekly wage rate for an engineering labourer for a 39-hour week, as negotiated at the national level in 1987 and reviewed to reflect movements in mechanical engineering earnings since November 1987. According to these statistics, the wage of an ordinary adult male labourer is L117.70 per week. Although the Government does not specify the year to which the above wage corresponds, the Committee understands that it applies to 1982 since, in the information supplied by the Government under Part V (Old-age benefits) of the Convention, Article 28, it compares the weekly contributory old-age benefit paid as of April 1992 (L86.70) with the above wage of L117.70 per week.

The Committee however notes that, according to the statistics published in 1992 by the United Kingdom Department of Employment (New Earnings Survey 1992, Part C, Analyses by Industry, table C 78.3), the weekly earnings (excluding overtime effects) in April 1992 for a manual worker in the mechanical engineering industry belonging to the lowest decile was L162.04, which represents a difference of L44.34 per week in comparison with the statistics supplied by the Government in its report. The Committee therefore hopes that the Government will be able to re-examine the manner in which the wage of an ordinary adult male labourer is calculated for the purpose of calculating periodical benefits and that it will be able to supply detailed information in this respect. It also hopes that the Government will consider the possibility of referring in future to the statistics published by the Department of Employment in its earnings surveys.

Since the legislation cited by the Government in its report was received too late to be examined at the present session, the Committee has had to postpone its examination of it.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Part IV (Unemployment benefit)

1. Article 24 in conjunction with Article 69(i) of the Convention. Section 44, subsection 1(b), of the Social Security Act of 1986 - amending section 19 of the Social Security Act of 1975 - provides that an employed earner who has withdrawn his labour in furtherance of a trade dispute but does not fall within section 44, subsection 1(a), is disqualified from receiving unemployment benefit for any day on which his labour remains withdrawn (Endnote 1). Since, under Article 69(i) of the Convention, unemployment benefits may be suspended where the person concerned has lost his employment as a direct result of a stoppage of work due to a trade dispute, inter alia, the Committee would be grateful if the Government would provide detailed information on the practical implementation of subsection 1(b) of section 44 of the Social Security Act of 1986, providing, in particular, examples of cases where this provision has been applied.

2. Furthermore, the Committee takes note of a certain number of proposals to modify unemployment benefits, communicated by the Government in its twenty-first report on the application of the European Code of Social Security. Since some of these modifications might have an impact on the conditions for entitlement to, or maintenance of, unemployment benefits, the Committee hopes that the Government will endeavour to ensure that the new provisions adopted in this area do not affect the application of Part IV (Unemployment benefit) of the Convention. It would be grateful if, in its next report, the Government would provide detailed information on the implementation of these modifications, along with a copy of the newly adopted provisions. ENDNOTES Endnote 1

Under section 44, subsection 1(a), of the Social Security Act of 1986, an employed earner who has lost employment as an employed earner by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for any day during the stoppage unless he proves that he is not directly interested in the dispute (subject to the provisions of subsection 2).