Artists’ right to unemployment benefit

At a time of mass unemployment and world-wide recession, how does the unemployed artist fare in the welfare state? Will unemployment or supplementary benefits be paid? Does the state have a duty to meet the needs of unemployed artists, or must they find other remunerative work and, if so, of what kind?
“Now, all of us at times we might work too hard,
To have it too fast and too much,
But anyone can fill his life up with things
He can see but he just cannot touch.”

‘I am a sculptor. Does an unemployed minister cease to preach? Does an unemployed musician cease to practise his instrument? Does an unemployed poet cease to compose poetry? Does an unemployed sculptor cease to make sculpture? If I sell my car am I a second-hand car dealer?’ Tough stuff. This was the opening salvo launched by a sculptor at an Unemployment Benefit Tribunal hearing. He was fighting his case to be allowed unemployment benefit – and he won.

At a time of mass unemployment and world-wide recession, how does the unemployed artist fare in the welfare state? Will unemployment or supplementary benefits be paid? Does the state have a duty to meet the needs of unemployed artists, or must they find other remunerative work and, if so, of what kind?

Many would argue that artists (and art) are a luxury the welfare state cannot and should not afford; some that only state patronage can support the arts; others that private and state patronage and state support together should provide the resources for culture and its creators. The Minister for the Arts and others are currently beating the patronage drum to raise money for projects – performances, exhibitions, publications, organisations and so on. There also exists a state system of social security benefits which should be available to all citizens of these islands – even artists – but, often, the benefits box is locked and the key is hard to find. Signing on is the key.

Every unemployed person should register at their local unemployment benefit office (the DHSS) on their first day of unemployment. This ‘signing on’ is most important: it not only proves that the person is available for full-time employment and therefore probably eligible for benefits, but also that the person is not gainfully self-employed and liable to pay self-employed National Insurance contributions. Many younger artists, particularly in the first years out of art school, do not realise that if they are not working for someone else they must either buy self-employed stamps or sign on as unemployed; there is no choice. Often, this failure results, years or months later, in loss of National Insurance contributions – by way of credit if unemployed, or through purchase of stamps if self-employed. Lack of such contributions can seriously prejudice their rights to benefits. In fact, one artist was prosecuted for failing to pay self-employed National Insurance contributions during his first three years out of college; he had failed to sign on as unemployed, had not bought self-employed stamps and could not prove to the court that he was not self-employed during the three years. Not only did he have to pay a hefty fine and costs, but also a sum representing the three years’ self-employed stamps he should have bought. And this all came to light when he was about to be sent to prison for non-payment of the sums ordered by the court.

Moreover, signing on is a must in order to claim certain welfare benefits. This is where the case of the sculptor is relevant, because artists can have difficult problems in proving their case.

Unemployment Benefit

Everyone has a right to unemployment benefit if they:

have paid sufficient Class 1 National Insurance contributions during the previous tax year. (Class 1 contributions are paid by employees and their employers, so a post-art school student who has never worked would not qualify; this is one of the reasons why it is advisable for younger artists to find full-time employment after leaving college. Without such contributions it is still possible to be paid supplementary benefit, but the wages from any job are always likely to be greater).
are unemployed or laid off due to an interruption of work for at least two consecutive days in any period of six (excluding Sundays).
do not earn more than 75p for any day they are out of work.
are available for full-time employment.
So, in our sculptor’s case, he had left art school, had worked in a foundry for a year (paying his Class 1 contributions) and had left to devote more time to his sculpture and try to find some art school teaching; he signed on, but was refused benefit.

There are certain factors which may disqualify from the right to benefit:

if they voluntarily left their job ‘without just cause’ (in which case the first six weeks’ benefit is not payable).
if they refuse ‘without just cause’ to accept or apply for suitable employment offered through the Department of Employment.
if they lost their job through misconduct i.e. such as would justify a reasonable employer to sack them, (in which case the first six weeks’ benefit is not payable).
if they are laid off throughout an industrial dispute (unless they show to the DHSS that they are not taking part or directly interested in the dispute).
benefit is not paid for the first three days (so-called ‘waiting days’) or for more than 312 days; Earnings Related Supplement can be paid, in addition, for dependants.
Our sculptor was refused benefit on the ground that he was not unemployed within the meaning of the relevant law. In the words of the government officer, ‘The evidence from the claimant in this case shows that he was making sculpture for himself and that he does this on most days of the week for between ten and twelve hours per day. He obtains no monetary reward for this work. It follows, therefore, that the claimant was not unemployed and that benefit is not payable’. We have already seen the flavour of the artist’s response to this at the appeal hearing – in the absence of specific commissions, his sculpture was not made for remuneration at the time. The Tribunal found in the artist’s favour, ‘Making sculpture was to occupy the claimant’s time and not for financial gain. There was no obligation for him to make sculpture. There was no contract of service involved. Consequently, the Tribunal are of the opinion, after taking into account all the circumstances, that the claimant has proved that he was unemployed’ and, I would add, ‘for the purpose of obtaining unemployment benefit’.

Some may argue that necessity is the mother of.and so on, but in response to that I am reminded of the neat little advert placed in The Times recently to the effect that the undersigned persons would never have made it without sponsorship, namely Mozart, Michaelangelo, Haydn, Hogarth, and so on.

Next month, we will carry on and look at artists’ rights to supplementary benefit, especially in the light of a recent important decision in the Court of Appeal.

© Henry Lydiate

*©Dwarf Music, 1968

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.