Supplementary Benefit

Supplementary benefit is for those whose resources are insufficient to meet their requirements. Last month we looked at artists’ entitlement to unemployment benefit and their duty to make National Insurance contributions; now we must consider artists’ rights to supplementary benefit.

“To help unhappy commoners, and add to their enjoyment,
Affords a man of noble rank congenial employment;
Of our attempts we offer you examples illustrative:
The work is light, and, I may add, it’s most remunerative.”

W.S. Gilbert, The Gondoliers, Act II

It has always been successfully argued that artists are not entitled to supplementary benefit, on the basis that art work they carry on whilst receiving benefit is ‘remunerative full-time work’ which disqualifies them from entitlement. In a recent case decided in the Court of Appeal the meaning of the word ‘remunerative’ in this context was questioned and the results of the judgement of the Court are of great importance to artists. It would appear from the case that an artist’s full-time work may not be treated as ‘remunerative full-time’ for the purposes of the supplementary benefit laws. Does this mean that the State is required by law to support full-time artists by paying them supplementary benefit, if they need it? Let us look at the simple facts of this recent court case.

The claimant was entitled to, and received, supplementary benefit. However, while in receipt of benefit she commenced business as a translation agency in her own home. The business was conducted at a net loss and the claimant continued to claim benefit. The Supplementary Benefits Commission then decided that she was ‘engaged in remunerative full-time work’ and therefore excluded by law from entitlement to benefit. The claimant appealed to a Supplementary Benefit Appeal Tribunal and she appealed to the High Court, contending that because her business was conducted at a loss she was not ‘engaged in remunerative full-time work’ and was therefore not disqualified by the law from entitlement to benefit. The judge dismissed her appeal, so she appealed to the Court of Appeal.

Although the claimant was involved in work as a translator, the parallel with an artist is very clear; they both work on their own account, using training and skills developed over a long period to create something original which could be commissioned by a third party or produced of their own volition. The issue which fell to be decided by the Court of Appeal is entirely relevant to both: what is the meaning of ‘remunerative full-time work’ for the purpose of the Supplementary Benefit Act 1976? Or, in a nutshell, what is meant by ‘remunerative’?

In the view of one of the judges, the word still retains its natural meaning of ‘remunerating – bringing remuneration’ and it is in that sense that it is used in the expression ‘remunerative full-time work’ in the 1976 Act. All very well; but work or employment may be done for a consideration or for nothing, paid or unpaid, for gain or for love or duty. When Parliament passed the Act, why did it not specify what ‘remunerative’ was intended to mean? In the words of another judge in that case, the person might be engaged in full-time work for weeks or months on end, without receiving any payment at all, although thereafter entitled to be paid what would amount to a handsome net profit for the period concerned; and in such case the receipt of supplementary benefit would provide a convenient interest-free source of money to assist in building up a business. In the Learned Judge’s view, this was not the intention of Parliament; ‘remunerative’ is descriptive of the work itself and not of its financial results.

Did Parliament consider an artist’s needs when it passed the Act? If we were to ask the question now, there could be many different answers: fine artists do not ‘work’, they create; if they do work, they do it because they have to, not necessarily because they are paid to; some create work in the hope of sales and others simply to exhibit; only those with private means should be artists and if others without such means cannot make money from it, they should not be supported by the State; the State must support its fine artists – at least on the breadline (supplementary benefit) – until their work becomes remunerative; in the absence of private patronage, the only answer must be State support.

If commissioned for a fee to create a piece, obviously that work will be remunerative (even if payment occurs much later), and no artist should be entitled to State support under the Act. However, most artists, it could be said, do not work for commissioners – but because they have to: some hopeful of remuneration, and others not. Perhaps it is all a question of intent; if artists decide to sign on and receive supplementary benefit in order to support their unremunerative artwork, should the State support them? Or, if artists cannot find any remunerative work at all, not even through sales of artwork, should they be disqualified from entitlement to supplementary benefit simply because they fill their empty days engaged in the creation of artwork? Who knows, but that the work created in this way may start to sell, or teaching may be offered, and in this way one of the millions of unemployed will not need supplementary benefit.

It is more of a moral, social and political problem than a legal one, but the law is the final arbiter so let it have the last word (for the moment); the judgement in the Court of Appeal holds that ‘remunerative full-time work’ refers to work which was paid for. If artists’ work (i.e. their aesthetic judgement, skill and labour) is not paid for (or promised, contractually, to be paid for), then it is hard to see how such work could be defined as bang ‘remunerative’ for the purposes of entitlement to supplementary benefit.

© Henry Lydiate 1980



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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.