HC Deb 29 February 1972 vol 832 cc308-18

6.17 p.m.

Mr. John Mackie (Enfield, East)

It is not often that an hon. Member gets the best part of four hours to himself, and I hope that some of my hon. Friends and some hon. Members opposite will listen to this Adjournment debate because the subject is rather interesting and will be particularly appreciated by lady Members. There is nothing political about it; it is simply a question of the law dealing very hardly with a constituent of mine, Mrs. K. D. Brown.

I will give a short history of the case. I am glad to see the Under-Secretary coming in; I realise why he was not present at the beginning. The history is that Mrs. Brown started work in 1927, which was the year I started work. She got married in 1930 and paid full insurance stamps up to 1960. In 1955 her first husband died and in 1957 she married again. In 1960 when she was 50 she was not too well and decided to work part time instead of full time.

Because her income was down a little and because she had paid insurance stamps for 33 years she decided that she would pay only for industrial insurance stamps and not the full stamp for the rest of her working life. In 1958, as she was approaching the age of 60, she inquired about her pension and to her horror was told that she could not have one. The reason was that there is supposed to be a condition in the relevant Act which says that a married woman cannot get a pension unless she has paid for more than half the number of stamps between the date of marriage and her retirement. Her last marriage was in 1957 and she wanted to retire in 1960. Having stopped paying full stamps during that period, she did not have the requisite half of the number of weeks' contributions for that period.

I would like to draw the attention of the House to the National Insurance Act, 1965, Part II, page 32, Section 33(2)(a), which affects Mrs. Brown. It reads: the number of contributions paid by or credited to her in respect of the period between the date of the marriage and her attaining pensionable age is not less than one half of the number of complete contribution weeks in that period". That is the condition with which she has to comply before getting her pension. There is no word about which marriage. It simply says "marriage", which could be the first, second or fiftieth marriage as far as I, as a layman, can see.

I think I am helped in this because, in another passage which has nothing to do with my constituent, Section 33(3)(a) refers to each contribution year falling wholly or partly before the death of her husband (being, if she has been married more than once, her last husband). Why does it say in that subsection "her last husband" when Section 33(2)(a), which affects my constituent, simply says "marriage"? That is the Act itself.

Hon. Members can imagine the disappointment felt by my constituent when she was told that she would not get the pension after she had paid stamps for 33 years and was looking forward to the age of 60. Her husband told me the position and said that the social security office had told her that it must have been explained to her in 1960 that this was the case. I have received from the Minister the 1959 pamphlet which my constituent was supposed to have had, but she does not remember receiving it or having signed that she understood it. She may have done so. That is a very important signature for anybody to put on a document; it means in Mrs. Brown's case that if I cannot persuade the Minister that he is wrong, she was signing away a pension of £6 a week for five years.

It may be that the Minister cannot keep these forms and that it is too big a job to catalogue them. However, the form which this lady signed could not be produced to me when I asked for it although it was stated on her card that she must have signed it. I am not debating that—she may have done so—but I think such an important document should have been kept to show that she did sign it.

In the pamphlet the Act is paraphrased for people to understand, and on page 10, item (b), it says quite distinctly that the conditions which a woman must carry out before she gets a pension are that, if she was married before 5th July, 1948, her contributions paid or credited were for at least half the weeks involved. Special credits—for the purpose of this test only—replace the actual contribution record up to 5th July, 1948.

There is nothing there about the last marriage; it simply says "marriage". Nowhere in the pamphlet can I find any reference to "last marriage", "second husband" or anything else. In the up-to-date pamphlet which has been given as a guide to women's pensions, Leaflet N.I.15 produced in 1957, the relevant paragraph is on page 8 and says that if a woman was married before 5th July, 1948, much the same rule as before applies. That is the additional condition to be carried out; it is at the top, in black and white. If it meant the last marriage, why did it not say so?

Another condition states: From 29th March 1965, this 'half' test does not apply to a woman whose marriage, or last marriage, took place within three years of her 60th birthday. So when it means "last marriage", it mentions it. Therefore, if it has not been mentioned before, how is any lay person to believe that it meant anything other than simply that she was married, in this case twice?

That is the case for my constituent. I would like to plead it very carefully. I do not think that Act means that it has to be her last marriage at all, because it does not say so. Where it means that, it says so quite distinctly, as in the up-to-date leaflet. Therefore, I maintain that this woman should get her full pension now from last October, when she reached the age of 60 and retired.

The Minister and I have had a lot of dealings on this subject and in some ways he has been very generous. I want to give him full credit for what he has done. He looked into the case and when he found that there had been a mistake in dealing with the time when my constituent actually applied for the pension in 1958–59, he made what was basically a generous offer. This was that if she paid up for the period from her last marriage to 1960—about 265 stamps—she would be given the pension.

But I do not think she should be asked to do that. She is right in the first instance in that "marriage" does not mean the first, second or third marriage; it was just the fact that she was married. I do not want to labour that point, apart from thanking the Under-Secretary for making the offer. But I do not think it is good enough.

Mrs. Brown is waiting to hear the result of this debate. In the meantime the Minister has suggested that she should go through the procedure. If she is dissatisfied with the local officer's interpretation of the law, she can go to a tribunal. If she is still not satisfied, she can go to a commissioner. But this is not good enough. This working woman should not have to go through this process. No one to whom I have shown this matter can understand how it can be argued that this provision means the last marriage.

Anyway, what does Mrs. Brown get for 33 years of stamps? No wonder we have Women's Lib if that is how we treat a lady who has paid her stamps for 33 years and will get nothing out of it until she is 60, when she comes in with her husband for the normal pension.

The commissioner will probably be some cold fish of a lawyer who considers the legal side and not the moral side. That is why I am scared to let this matter go to a tribunal or the commissioner. I shall therefore be very glad to hear what the Minister says.

6.30 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Paul Dean)

I am grateful to the hon. Member for Enfield, East (Mr. Mackie) for raising this case. He has written to me, and I have considered carefully and sympathetically the points which he has put. But I am sure that, with his experience as a Minister, he would be the first to admit that it is the job of Ministers and of appeal tribunals and other appeal machineries under the National Insurance Scheme to administer the law. They cannot change the law to suit what they may feel to be the particular personal circumstances of each case.

I am sure that the hon. Member would be the last to suggest that in a scheme like the National Insurance Scheme, founded as it is on law, there should be this sort of discretion on the part of Ministers and officials. It is a different matter when we are dealing with supplementary benefit procedures. Parliament has specifically given the officers and the Supplementary Benefits Commission discretion within certain limits.

The job of the Minister is to administer the law or to ask the House to change it if he thinks appropriate. Equally, it is the job of the appeal machinery to interpret the law, and no Minister can direct how the law shall be administered.

The hon. Member has raised some important issues about Mrs. Browns right as a married woman to a pension on her own insurance. It may help if I explain her position and how the statutory provisions affect her. As the hon. Gentleman said, Mrs. Brown's right to a retirement pension on her own insurance turns on what is called the "half-test". It is known by this name because Section 33(2) of the National Insurance Act, 1965, provides: Where on attaining pensionable age a woman is married, she shall not be entitled under Section 30 of this Act to a retirement pension by virtue of her own insurance unless…the number of contributions paid by or credited to her in respect of the period between the date of the marriage and her attaining pensionable age is not less than one half or the number of complete contribution weeks in that period. But the main point which the hon. Gentleman was raising was, in the case of a woman who had been married twice, from the date of which marriage the half-test should apply.

Where, as in Mrs. Brown's case, a woman has been married more than once, Section 33(2) applies, but it is over the period between the date of the last marriage and pensionable age. I am aware that the hon. Gentleman does not accept this, but if he and his constituent consider that that Section permits the test to be calculated from the date of an earlier marriage and not the marriage which subsisted at pension age, his constituent, when the time comes, can state her case before a local tribunal and the National Insurance Commissioner.

My own advice is that the relevant marriage is the marriage which exists when a woman reaches minimum pension age. That is the advice which I have received on the interpretation of the Act. But I emphasise that Mrs. Brown i3 perfectly entitled, if she disagrees with that interpretation, to put in motion the appeal procedure which is entirely independent of ministers, and, if necessary, can write to the National Insurance Commissioner, who will authoritatively interpret the Act. This is my advice, but clearly, as a Minister I cannot give an authoritative interpretation, because it is not my job. It is the job of the local tribunal and the appeals procedure which I have mentioned.

The appropriate course, if the hon. Gentleman feels, as he does, that the interpretation of the Act which I nave given, with the best advice available to me, is not correct, is for Mrs. Brown to test her right through the appeal procedure. I hope very much that she will do that.

Mr. Mackie

The Minister used the expression "last marriage" when I thought he was reading from the Act, but the Act does not say that. Was he reading from something else or was he putting in the phrase because that is his advice?

Mr. Dean

I read the passage from the Act on which my advice as to the interpretation is based Section 33(2). I was explaining that my advice is that the relevant marriage for the purposes of the Act is the marriage which exists at the time of minimal pension age. However, I am emphasising that that is my advice. It would be wrong for me to suggest that I am attempting to give an authoritative interpretation. That is not my job but the job of the appeals procedure.

Mr. Mackie

My experience has been that these appeals cost money. If this is an interpretation of the law, can the Minister suggest that my constituent can plead a case against an Act without having to pay a lawyer? Can she get all her expenses?

Mr. Dean

There is no necessity in cases affecting national insurance matters for any expense on the part of the person concerned. These are not courts of law in the normal sense where people have to be represented with expert legal advice. It is appropriate for anyone appearing before a local tribunal to take along a friend or an adviser, or, if he wishes, to pay for qualified legal advice. But it is quite unnecessary for this to be done, and in the vast majority of cases people state their case on their own or with the help of a friend. There is no question of these tribunals trying to win cases against people or for Ministers. They have to interpret the law as they see it in the light of the information given to them. There is no expense in providing oneself with the qualified legal advice which is necessary in cases of this kind.

The half-test has existed since 1948. A married woman's choice whether or not to pay contributions is important and affects not only her right to a retirement pension on her own insurance but also her right to other benefits under the National Insurance Scheme. For this reason, when a married woman elects whether or not to pay a further contribution she signs a declaration that she has read the appropriate leaflet or had it explained to her. The leaflet which the hon. Gentleman has mentioned gives information about a married woman's position in insurance and explains, among other things, the effect of the half-test on her right to a pension on her own insurance.

I understand that Mrs. Brown cannot remember exactly what happened in April, 1960, when she made her election, but the hon. Member has said that the leaflet current then did not make it clear that the half-test was calculated over the period of the last marriage. As he knows, I have accepted the point that it might not be—indeed was not—entirely clear in the explanatory leaflet, and it is for that reason, as I have told the hon. Gentleman, that Mrs. Brown will be given the opportunity, if she so wishes, to pay contributions to enable her to satisfy the statutory contribution conditions for the award of a retirement pension on her own insurance. In other words, in this respect we are very happy to give her the benefit of any doubt which may have been in her mind at the time and to give her the opportunity fully to restore the position she would have been in had she elected at that time to pay the necessary contributions.

The rate of pension for which Mrs. Brown could qualify would depend on the number of contributions she wishes to pay, but if she paid the 151 contributions necessary to satisfy the half-test. which would be about £110, this would give her entitlement on retirement to a pension of £4.84 a week at current rates. But, according to my information, Mrs. Brown has not yet retired, and whether it would be to her advantage to pay these contributions depends on how long she intends to continue working and the date on which her husband intends to retire. If he retires on his 65th birthday, which I understand will be in October, 1975, Mrs. Brown will then have an alternative title to a retirement pension on his insurance, which is likely to be at the weekly rate of £3.70 at current rates.

If Mrs. Brown so wishes I will gladly arrange for one of my officials to visit her to explain the position more fully so that she can make a decision whether or not to pay contributions in the light of all the facts. Mrs. Brown could not receive both pensions at the same time—only the higher of the two would be paid—but unless she pays these contributions the law does not permit the pension to be awarded to her on the basis of her present record. Indeed, it would not be fair to other contributors if she were to be paid a pension without satisfying the prescribed conditions; and, like other women who have elected not to pay contributions, she will in due course get a pension based on her husband's insurance.

The half-test was introduced when the National Insurance Scheme replaced the former contributory pensions scheme in July, 1948. The National Insurance Scheme provided much higher benefits to both men and women, and, unlike other insured persons, married women in insurable employment were not required to pay contributions compulsorily under the scheme and could in the normal course look to a husband's insurance for a pension. They were offered what was in effect a scheme of voluntary insurance, and the half-test was designed to show clearly that a woman intended to rely after marriage or re-marriage on her own insurance for a pension rather than on her husband's.

On the question of whether the half-test should apply solely over the period of the last marriage, it so happens that in Mrs. Brown's case it would be to her advantage if all periods of marriage could be taken into account for the purposes of the half-test, but a change of this sort would by no means help married women in general. In a universal scheme the rules must necessarily be designed to be fair to the generality of contributors.

The National Insurance Advisory Committee which considered the question of the contribution conditions for the various national insurance benefits in its report published in 1956 acknowledged the need for a half-test, but noted that the Department was keeping the test under review so that its development might be assessed. The hon. Gentleman will, I am sure, wish to know that we are studying this whole question in preparation for our plans for the reconstruction of the National Insurance Scheme, but I cannot at this stage say what the outcome will be. As the hon. Gentleman knows, we are proposing that the voluntary contribution on the part of the married woman shall continue to exist under the new pension proposals that we have, and, as I have just mentioned, one of the aspects we shall be considering is the half-test in the light of the new proposals.

I am sorry, therefore, that I have not been able to go as far as the hon. Gentleman wanted, but I hope he will at least feel that I have done my utmost to enable Mrs. Brown, if there was a misunderstanding—which I fully appreciate there may have been—to restore the position for herself by paying the necessary contributions in order that she may qualify for the half-test.

The other point I have made is that if Mrs. Brown feels that the interpretation of the law which I have mentioned is not correct she is perfectly entitled to put in motion the appeal procedure, and I shall be very glad when this debate is over to send an official to see her, to advise her and help her in every possible way on both these matters.

Mr. Mackie

Just a point or two for clarification. I think the Minister made a mistake. It is 251 contributions that Mrs. Brown has to pay, according to his letter of 4th January, and she will have to pay the full stamp and not get the benefit of her employers' contribution. So there is an added burden that the Minister is asking her to pay, from that point of view. Admittedly it is a concession, but it is an added burden.

The other point is that, of course, I see and appreciate the Minister's point on the need for the half-test. He did not really answer my point as to how either lie or I will tell Mrs. Brown what benefit she gets for the 33 years she has paid the full contribution. I can assure him that both Mr. and Mrs. Brown feel that they have been badly done by, or are going to be, from that point of view.

Another point is that I am not satisfied that a tribunal or an appeal to the Commissioner will be quite so simple as the Minister suggests, because, after all, what is being argued is the interpretation of an Act of Parliament. I presume—I do not know—that the Commissioner is a lawyer. If he is not, he is going to take legal advice. I would have thought it would definitely need to be argued, and the hon. Gentleman knows the cost of employing lawyers today. He did not tell us whether Mrs. Brown was going to get expenses. He just said it was not an expensive business. I do not think that any lay person could go before the Commissioner to argue this without a lawyer. This is what is worrying me. Would the Minister care to reply to these questions?

Mr. Dean

On the last point, I assure the hon. Gentleman that in the overwhelming majority of cases the people who come before the tribunals do, in fact, put their own cases, and very often they have the help of a friend, or a trade union representative, or someone of that kind. But that is quite unnecessary.

On the specific point, the extent to which any expenses which are incurred by a person are reimbursed, I have not got the full answer off the cuff. There are certainly provisions in some cases for expenses to be reimbursed. I have not got in my head the precise circumstances in which they are available, but I will write to the hon. Gentleman on the point.

The first series of points which the hon. Member raised amount, really, to; What had Mrs. Brown paid her contributions for?

Mr. Mackie

And what will she get for them?

Mr. Dean

The first thing is cover for short-term benefit, which is often a very important reason why married women pay contributions. It gives them cover themselves for sickness benefit and unemployment benefit, which, of course. they would not have in other circumstances if their husbands were in full-time work. This is one of the valuable covers they get. They also get entitlement to a pension in their own right, assuming they have got the adequate contributions They are able to draw that pension at retirement age, irrespective of whether their husband has reached retirement, whether he is still working or not. Those are the main reasons why married women cover themselves, and in many cases they are able to receive a good deal out of the fund for the contributions they pay.

Mr. Mackie

What about Mrs. Brown?

Mr. Dean

The point I am making is that Mrs. Brown was covered for unemployment and sickness in the event of her needing that benefit, and had she qualified for the half-test she would have had cover for pension in her own right.