[2025] UKUT 259 (AAC)

A claimant who does fall within those paragraphs will have retain entitlement in assessment period 2.

The Appellant does not accept that a seven month period of permissible absence would be created on this interpretation. The submission is that the decision maker is no longer concerned with the initial period. Either the initial absence has been disregarded under regulation 11(1)(a) (possibly extended by regulation 11(2)) and the award has continued, or it has not, and must be disallowed. There still remains a 6- month total limit.

The correct reading at all material times has been that a period of factual absence from Great Britain cannot exceed 6 months if entitlement is to continue. A continental shelf worker who travels to a prescribed area from an unrelated one month absence would otherwise have been capable (prior to the 2025 amendment) of attracting a 7-month absence if there were no such limit implied within the structure of the original regulation 11.

The phrasing “in connection with” does not directly implicate the claimant’s purpose, as would a test involving reasonable belief. Even on the Secretary of State’s approach, the purpose of the treatment cannot be decisive. The objectivity in the ‘solely in connection with’ condition cuts both ways. If, for example, a claimant is rendered comatose by an accident on arrival at the destination airport, the entire time abroad is coextensive with medical treatment. That would nonetheless be solely in connection with such treatment. The intention of a claimant may clearly be relevant to the categorisation of the absence. Mixed intentions at the operative time will be fatal to an argument that absence should be disregarded under regulation 11(4).

At a time when the Appellant’s absence fell squarely within the one month rule, his absence ceased to be for any other reason than medical treatment. That is what allows the continuing absence to be disregarded.

Fourth, the “before leaving Great Britain” proviso. The failure to exclude illness/impairment which postdates departure from Great Britain from the ambit of regulation 11(3)(a)(i), where the same is specifically excluded by regulation 11(3)(a)(ii) in connection with convalescence/care, suggests that it ought to be possible to disregard under the former continued absence which is solely in connection with medical treatment that was not preplanned.

Regulation 11(3)(a)(i) is not subject to the qualification, as is 11(3)(a)(ii) (convalescence or care), that “the person had that illness or impairment before leaving Great Britain”.

It would have been open to the drafters of the Regulations to include that same qualification in regulation 11(3)(a)(i), or as an umbrella in 11(3) or 11(3)(a). They did not.

That contrasts with the previous regulations dealing with absence from abroad. The equivalent in regulation 153(c) of the ESA Regulations did not make separate provision for convalescence, but included a similar proviso (albeit that the absence abroad needed to be for the purpose of treatment for limited capability for work):

“the claimant is absent from Great Britain solely—

(i)

in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant's limited capability for work which commenced before leaving Great Britain” (emphasis added).

The “entire trip” approach appear to make that distinction redundant. It is difficult to see how an absence abroad for a condition which a claimant did not have before leaving Great Britain could ever be disregarded.

Adopting a cautionary belt and braces approach, the Appellant submits that the more natural approach for the draftsman would be to adopt that across both the medical treatment and convalescence limbs.

The certification point does not add significantly to the analysis. It does not go to whether or not an illness must predate the travel abroad.

The Appellant submits that the mischief at which the “solely in connection” condition is directed is the possibility of claimants obtaining minor medical treatment to justify time abroad. That would be the effect if merely “in connection with” was the test. “Solely in connection” having only a qualitative, and not a temporal, dimension, is consistent with the drafting of the regulation.

Fifth, while only the bereavement disregard involves “extension”, that is consistent with its being the only disregard (prior to recent amendment) to involve a two stage test:

Is the absence abroad in connection with a relevant death

Is it unreasonable to expect the person to return within one month