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

United Kingdom of Great Britain and Northern Ireland

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

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.