Clause 1. — (Amendment of s. 3 of Insurance Act with respect to free insurance period and extended insurance period.)

Part of Orders of the Day — National Health Insurance and Contributory Pensions Bill. – in the House of Commons at on 15 July 1935.

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Photo of Mr James Johnston Mr James Johnston , Clackmannan and Eastern

Before this Bill receives the Third Reading, I wish to draw attention to one matter in which I claim that it makes some change of procedure as compared with existing legislation in respect to free insurance and the extended insurance periods. It is a change which, I think, may prove unfortunate for claimants to pensions whose title thereto is found to be dependent on whether they were qualified on an extended insurance period, or whether they have been entitled to postponement of the commencement of the free period owing to incapacity, or whether they are entitled to prolongation of the free period or extended period owing to illness. No reference has been made to this point. The House will be aware that under the National Health Insurance Acts disputes and questions arising fall, in the last resort, to be decided by the Minister. In contrast to that, under the Pensions Acts, every dissatisfied claimant has an unqualified right, because he does not need to obtain leave to have his case referred to a referee. This Bill provides for certain people an extended insurance period after the free insurance period. The people who may qualify for that are those who have had 10 years' continuous insurance, and the further condition that is necessary is, that during their free insurance period they should have been available for, but unable to obtain, employment. But how is that fact to be ascertained? According to this Bill it has to be ascertained in one way, namely, it must be approved to the satisfaction of the approved society, or, in the event of a dispute, in the manner provided by this Act. That occurs in a new Sub-section of the 1924 Act and, therefore, means in the manner provided by that Act.

Accordingly, the sole jurisdiction to determine questions of unemployment during the free period for the purpose of entitlement, to an extended period will rest with the Minister, and in Scotland his functions are exercised by the Department of Health. Therefore, even where the question involved in a particular case is not a health insurance question but a pensions question, the pensions referees will not have jurisdiction to deal with it, and the claimant to pension will not have, as he has had in other matters, the right to go to the referee, but his right to an extended insurance period will depend upon the decision, in the last resort, of the Government Department under the Health Insurance Acts. I should have said, of course, that for pensions purposes, insurance means insurance under the Health Insurance Acts, and that in other matters the pensions referees have jurisdiction, and exercise it, to decide whether or not a person is insured at a particular time. I must contrast this new specification of the mode of proof of unemployment to qualify for an extended period with the existing one under former legislation. In the 1928 Act, which in this particular is not affected by the 1932 Act, all that is said is that the extended period shall be allowed, if the man proves, without any further specification, as there is here, by a particular mode of proof. That provision left it open for the referee under the Pensions Acts where a pensions question was involved to exercise jurisdiction upon the question of whether or not a man was entitled to an extended insurance period.

I do not know what has been the practice in England, but I am told that in Scotland the referees under the Pensions Acts have asserted jurisdiction in these matters, and have exercised them. I am told that their intervention was resented by the Department of Health, who thought that they had no authority in regard to this question and threatened to have the matter tested by taking a case to the Court, but they did not do so. I am informed that it is upon this kind of question that the referees under the Pensions Acts have not uncommonly differed, to the advantage of the claimant, from the Departmental point of view. Accordingly, I cannot but suspect that the insertion of new words in this Bill is deliberate and designed to prevent the referees under the Pensions Act, even where the Pensions Act is involved, from deciding whether or not during unemployment and during the free period a man is entitled to the extended insurance period. This matter was brought to my notice by one of the referees who explained that he had no interest in the matter, because it would mean less work for him, but it struck him as rather a deliberately unobtrusive way of getting rid of jurisdiction in certain matters which the Department dislike.

Exactly the same thing occurs in the Bill in two other places. The Bill provides that where a person is incapacitated by illness at the end of the period of employment his free period will not begin until the end of the incapacity. There, again, under the Bill the incapacity requires to be proved to the satisfaction of his approved society or, in the event of dispute, in the mariner provided by this Act, that is, by the Minister. The corresponding provision in existing legislation simply says that the free period will be postponed if he is incapacitated at the particular time, without any reference as to how the incapacity is to be determined. There, again, in pensions questions in Scotland the pensions referees have exercised jurisdiction and decided upon the matter. Similarly, in one other place the Bill provides that if a person is sick at what otherwise would be the termination of the free or extended insurance period, the period shall extend to a certain date after the termination of incapacity. Again, proof of incapacity by this Bill is required to be made in a particular way which excludes any jurisdiction, even if a pensions question is involved, upon the part of the referee under the Pensions Act.

I do not want to labour the matter. It is a Committee point, and I am sorry that I did not know about it sooner. I am bound to say that in this particular the Bill makes a change from former Acts dealing with free and extended insurance periods. It is a change in phraseology which involves a change in law, and in Scotland a serious change in practice from the point of view of pensions claimants. It is the duty of those who make changes in the law to justify them, but no word of justification of this change has been offered. It is an infringement of the general right of the pensions claimant, given to him by the Act of 1925, of having his case, if he is dissatisfied, referred to the referee. It is true that when the Pensions Act was passed there was no such thing as an extended insurance period, but when the extended insurance period was introduced it was introduced in such terms as to leave it open to the pensions claimant to go to the pensions referee upon the question of whether he was entitled to the extended period. Lastly, this change is bad in principle, because wherever possible it is highly desirable to have all these questions decided by an independent tribunal and not to have them left to the decision of the Government Department which is responsible for administering them. Having drawn attention to the matter, I hope that the Minister may see his way, in another place, to revert to the same phraseology that has been used in these matters in previous Acts.