The Role and Functions of the State in the Social Security Act - Case Study Example

1 LAW ON SOCIAL SECURITY Introduction From time immemorial, various states and governments all over the world had adopted the pater familias principle that originated from ancient Roman law. Thus, states and governments had accepted and taken upon themselves the role or position as head of a household and as a "bonus pater familias" or good father of the family armed with "patria potestas" or patriarchal power or control. As such, states had invested themselves the role of " protector, keeper, nourisher and master" (Botsford 2001,p.19). One country which kept on tight rein for centuries its pater familias tradition is Japan. In Japanese history, the ruling Mikado as pater familias, invested with patria potestas, "invariably assumed the patriarchal attitude of guardianship towards the people" (Uyehara 2008, p.22). As the people's guardian, it felt obliged to take care of the weak, disabled, injured, the sick, the elderly and those undergoing personal crises. Everywhere else the concept of providing social security to all citizens badly in need of social benefits, as part of patria potestas had been designed. Social Security Benefits in UK In the European Union, social security systems had been formulated by its member states. The social security system in Bulgaria exemplifies how European Union states provide social assistance to its citizens. Social assistance is defined as "means-tested financial assistance, both in cash and in kind which is provided to individuals in need, meeting certain requirements" Pieters 2002,p.1). In Bulgaria, the state provides social insurance to its citizens who are too old or are incapacitated to work or those who died; health insurance, to the sick and to those 2 vulnerable to diseases as well as mothers giving birth; unemployment insurance; family benefits and social assistance which consists of long-term and day care social services for the elderly and mentally handicapped. In Great Britain, the fourth of its national income is reserved for expenses on social security, health care and education. While UK has entrenched itself as one of the most industrialised and sophisticated nations on earth, yet a portion of its populace remains mired in poverty and a considerable portion of it is unemployed and a big part of the unemployed are women who are single mothers. In a statistical figure presented by DWP (Department For Work and Pensions) in 2001, 5% of UK population is bracketed as poorest of the poor and this is comprised of single pensioners "receiving only the basic state pension of 72.50 pounds..and claiming no other benefits", where 17% of the whole population was declared poor (Hills 2004, pp 12, 19). Likewise, 19% of the UK populace were social housing residents and of these 73% belong to the poorest two-fifths of the population (Hills 2004,p.16). Because of these dire statistics, Great Britain as pater familias was compelled to provide soccial security benefits to citizens badly in need of support and unable to cope. By legislations such as the Social Security Act of 1986 and through regulations formulated by the Secretary of State and with the guidance of case laws, UK through the administration of the DPW, has established benefit schemes that provide cash benefits to those who are qualified to receive such social security benefits. These benefits are classified into three: contributory benefits, which are insurance benefits designed to answer for the perils of death, old age, work incapacity, 3 unemployment and pregnancy; non-contributory benefits, which are taken from general taxation of the populace for the purpose of answering for the perils of old age, child care and disability of people not covered by contributory benefits; and means-tested benefits, which are funded by general taxation and finances needy citizens who are qualified via a means test by doling them "income support, income-based job seeker's allowance and working families' tax credit" (Pieters 2002,p.139). To make this undertaking a success, the role of the Social Security and Child Support Commissioners of the UK is highly essential because their functions are related to decision-making and the appellate process not to mention their inquisitorial role (Buck, Bonner and Sainsbury 2005,p. 36). Thus, they adjudicate on social security cases in an appellate manner as original decisions are generated by particular officials in the DWP. Their decisions are generally final albeit they may be elevated to the Court of Appeals on points of law. The Case of Stacey Stacey, as a single mother to two youthful children and as an unemployed citizen is qualified by means-tested procedure to take advantage of UK's income support as provided for by various regulations and the Social Security Act of 1986, as amended in 1998. The 1986 Social Security Act was responsible for legalising the availability of a social fund meant to protect all citizens against poverty and thus close the yawning gap between the rich and the poor. This Act was completed by the introduction of the insurance principle by the National Insurance Act, which also was looked upon as "the response to the problem of unemployment" (Hill 2003,p20). Stacey is a direct recipient of both but not with SERPS (State earnings-related pensions) and its amended act because she is not an employee. SERPS provides earnings-related 4 pensions based on employee contributions to this state pension scheme or any of private schemes approved by the government. Although Stacey had been doing sewing and embroidery work and selling them occasionally and had been helping in her friend's caf, these cannot be deemed as working under an employment scheme because this is outside the ambit of the definition of an employee which is " a person who is gainfully employed on the basis of an apprenticeship or a contract of employment" where "there is a supervision of workthere exists a possibility of substituting an employee or ..there is discretion on hours of work, etc. (Pieters 2002,p141). Therefore, since she is not an employee, she is ineligible to seek for benefits under amended SERPS or under any of the contributory benefit social schemes as it can be deduced that she never made any contribution to any employer-employee contributory schemes. However, being a non-employee will reinforce her entitlement to accept income support from UK's social security schemes. All her attempts to gain some income cannot also mean that she is a self-employed person because such activities are not on a regular basis and the income she derives from these are too meager to even sustain her children's daily needs. Her sewing and embroidery work should be deemed as more of a hobby rather than an industry because the products are only occasionally sold and are not publicly sold in markets or malls but only in school premises, while she is awaiting for the children to finish their school activities. Because she is not gainfully employed and thus has a low income and under means-tested benefits scheme, she and her two children can also readily avail of non-contributory health services under the National Health Service, which provides care by general practitioners. 5 In order that Stacey will cement her entitlement for social security benefits under the Income Support Scheme, I would advise Stacey to provide DWP with the list of all the earnings she received from her sewing and embroidery work because the law on this bases the entitlement on the means of claimant.. The law says that the claimant's income and capital excluding the value of the home, must lie below a legally applicable level", that she must be 18 years of age or above, is a habitual resident of Great Britain and "not in full-time employment " where "full-time employment normally stands for 16 hours or more per week" (Pieters 2002,p151). Because Stacey has to take care of two young children, then she can only claim for Income Support rather than Jobseeker's Allowance, which is a contributory benefit scheme for people who are capable of working. As someone entitled to income support, she therefore is eligible for personal allowance, which amount depends on whether the claimant is a single parent or married with children, the term 'married' including partners cohabiting with each other. Stacey is also entitled to fixed premiums, which amount varies depending on family responsibility, age and disability. Another entitlement for Stacey which she must hold on to are housing costs, which "consist of payments covering the expenses mainly of the owner-occupiers". However, in Stacey's case, she is most likely an accommodation renter, in which case, the scheme still covers her case. I would advise Stacey not to give people from DWP any cause to think she is cohabiting with anyone, especially Bradley because the amount of the Income Support would be drastically reduced by the presence of either a husband or a live-inpartner. This is because the amount of income support payable is calculated by taking the difference between the income of the family, which would include that of the husband or the live-in partner and that of any adult non- 6 dependent and the determined applicable amount for the claimant (Pieters 2002,p.152). I would advise Stacey that it is alright for Bradley to be seen with her and the children in supermarkets, parks and beaches. It is even alright if Bradley babysits for her while she is out with her friends as long as her friends can substantiate her allegations that she is with them on such days while Bradley is left home alone. What is highly questionable is when Bradley sleeps overnight with her and the children in the house. This is because in the case Mendoza v Gheidon, the Court of Appeals Justice Ward looked at cohabitants as the "equivalent of persons living together as husband and wife or alternatively were simply a family" (Mendoza Case). With Bradley sleeping in the house, it naturally looked like they are a family. And today's concept of family has undergone mutation as "it is now recognised as not being restricted to married families or heterosexual cohabitation, but to include the extended family" (Burton 2003,p12). In this case, there is no doubt Bradley is an 'extended family'. However cohabitation has been defined as "living together in an intimate relationship, such as husband and wife" (Merriam Webster Dictionary). Thus Stacey can deny cohabitation by saying that they do not live together and that they do not have a sexual relationship and that Bradley's sleeping over is not habitual but only accidental brought about by necessity such as an inclement weather, inability to take a ride, earthquakes, floods and other instances of force majeure or because the children are sick. I would also warn Stacey that there are cases where continued cohabitation was sufficient reason for losing the whole social security benefits (German Federal Social Court Decision). Thus, if she wants to retain the whole benefits, she must be careful because people from DWP will always do their job to ensure that the requisites for entitlement to benefits are followed to the letter. 7 Conclusion Like the rest of the countries in the European Union and most of the countries in the whole world, states and governments feel compelled and obligated as pater familias or protector, nourisher and keeper of their constituents to provide social security benefits to the weak, poor, disabled and the unemployed . In Great Britain, the Social Security Act of 1986 as amended in 1998 and various regulations established by the Secretary of State had provided for contributory benefits, non-contributory benefits and means-tested benefits to help out the poor and disadvantaged and close the yawning gap of the poor and the rich. In the particular case of Stacey, who receives income support benefits as an unemployed mother of two young kids under the means-tested scheme, her entitlement to these were questioned on the basis of her being gainfully employed and on her cohabiting with Bradley. This paper proves that she is not gainfully employed and that she is not cohabiting with Bradley and advises Stacey to be careful so that there would be no more investigations from the DWP on such matters in the future. 8 BIBLIOGRAPHY Botsford, G.W. 2001, 'The Roman assemblies from their origin to the end of the republic', The Lawbook Exchange, Ltd. Buck, T., Bonner, D. & Sainsbury, R 2005, 'Making social security law', Ashgate Publishing, Ltd. Burton, F 2003, 'Family law', Routledge. German Federal Social Court Decision. DE 17/10/02 Hill, M.J. 2003, 'Understanding social policy', Blackwell Publishing Hills, J 2004, 'Inequality and the state', Oxford University Press. Mendoza v Gheidon (2002) EWCA Civ. 1533 Pieters, D 2002, 'Social security systems of the member states of the European Union', Intersentia nv. Uyehara, G.E. 2008, "The political development of Japan 1867-1909', READ books. Read More