[2025] UKUT 259 (AAC)

I accept the arguments of the Secretary of State. The problem with the Appellant’s submissions is that they all ultimately founder on the preamble to regulation 11(3) which states that the paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months and is solely in connection with treatment or convalescence or care. The Appellant’s arguments are all an attempt to get round that express wording. In this case it is common ground that the Appellant went abroad for a holiday and it was only whilst he was on holiday that he became ill and required medical treatment. The exception in regulation 11(3) cannot therefore have applied to him.

The Appellant’s submissions on the construction of regulation 11(3)(a) run contrary to the express wording of regulation 11(3), the structure of regulation 11 as a whole and its purpose.

In the first place they do not give full force and effect to the requirement that the absence must be “solely in connection with” the medical treatment or the convalescence. “Solely” in this context, on its natural meaning, must refer to singularity of purpose. In other words, absence which is for the mixed purpose of holiday and medical treatment, or absence which commences for the purpose of holiday, but then becomes absence for the purpose of medical treatment, will not be “solely in connection with” medical treatment.

As a matter of the construction of the regulation, regulation 11(1) provides that the exceptions in regulations 11(1)(b)(i) and 11(3) or (4) are in the alternative (“either … or”). Regulation 11(b)(i) can be extended by up to a further month if the bereavement provision in regulation 11(2) applies, but the one month period in regulation (b)(i) is an alternative to, and is not to be construed cumulatively with, regulation 11(3) or (4)

I agree with Ms Ivimy KC that, if it had been intended that a period of absence for medical reasons could extend the standard one month disregard by up to a further six months, the draftsman could and should have included an extension provision similar to regulation 11(2).

By contrast, the wording of regulation 11(3) is noticeably different: it does not extend the one month period (as does regulation 11(2)), but provides for an entirely separate six month period of disregard, provided that it is “solely in connection with” qualifying treatment. It is not open to a claimant to mix and match regulations 11(b)(i) and 11(b)(ii), or to indulge in “phasing” of them, as the Appellant seeks to do. It is therefore incorrect to assert that, at a time when his absence fell squarely within the one month rule, his absence ceased to be for any other reason than medical treatment and that that allowed his continued absence to be disregarded.

Regulation 11(3) is not intended to extend the period for which UC is available to persons temporarily absent from Great Britain if they experience medical emergencies within one month of travelling abroad. Rather, the mischief at which regulation 11(3) is aimed is ensuring that people who need to leave Great Britain to obtain treatment or for convalescence are not penalised by having their benefit withdrawn.

There is considerable force in Ms Ivimy KC’s submission that the position of someone who leaves Great Britain for the purpose of qualifying treatment is to be contrasted with that of a person who unexpectedly experiences a medical emergency whilst abroad. Anyone who chooses to travel abroad can be expected to assume that risk and, in principle, to insure against it. That underlying purpose is reflected in the fact that regulation 11(3)(a)(i) is drafted by reference to treatment by a qualified practitioner. If it were intended to extend time for persons who experience a medical emergency abroad, one would expect it to be drafted by reference to whether a medical condition (and not specific treatment for a medical condition) prevents a claimant from returning to Great Britain.

Regulation 11(4) does not assist the Appellant. The same arguments apply to regulation 11(4) as to regulation 11(3). Moreover, regulation 11(4) does not contain the “solely in connection with” stipulation present in regulation 11(3). Regulation 11(4) is, again, an alternative to, and not an extension of, regulation 11(1)(b)(i).

I do not accept the argument which Mr Kane put at the forefront of his submissions that the 2013 Regulations permit the “phasing” of an absence such that a claimant whose absence is disregarded under one basis may have his continued absence disregarded under another and that such an approach is not limited to regulation 11(2). That is a wholesale rewriting of regulation 11. Regulation 11(1)(b)(i) and 11(1)(b)(ii) are alternatives. Regulation 11(2) can extend the one month provision in regulation 11(1)(b)(i) by up to a further month, but it does not apply to regulation 11(b)(ii) and thus not to regulation 11(3) or 11(4).

The “entire trip” approach does not require regulation 11(3)(a)(i) to be read as containing a requirement that the treatment be pre-arranged which its text does not. On the contrary, that is precisely what the text does require because the opening words of the provision expressly require that the absence is “solely in connection” with the qualifying treatment.

Mr Kane sought to argue that “the structure off regulation 11 should not be a barrier to [his] analysis”, but that is a tacit recognition that the Appellant’s construction of regulation 11(3) is simply untenable.

Mr Kane also asserted that in circumstances where entitlement continues until the supervening circumstance (here a need for medical treatment), there were no grounds for supersession. But here there were grounds for supersession because the continued absence was not “solely” for the qualifying medical treatment because regulation 11(3) did not apply. Thus, as Mr Kane then rightly said, a claimant, like the Appellant, who exceeds one month of absence and does not fall within regulation 11(2), 11(3) or 11(4) will have his award superseded and disallowed with effect from the beginning of assessment period 2 (as, which is common ground, the Tribunal should have found in this case)

Although Mr Kane relied on the proviso in regulation 11(3)(a)(ii), that the claimant must have had the relevant medical condition “before leaving Great Britain”, I am satisfied that that does not assist him either. His case is the absence of such a proviso in regulation 11(3)(a)(i) means that it must have been intended that temporary absence for treatment for a medical condition which arises for the first time within the one month period after the claimant has left Great Britain can be disregarded. I agree with Ms Ivimy KC that that does not follow. As explained above, such an interpretation is at odds with the wording, structure and purpose of regulation 11 as a whole. It also again ignores the opening stipulation of regulation 11(3) that the absence is solely in connection with the treatment or the convalescence.

Moreover, there is there no coherent reason why the relevant medical condition should have to pre-date the leaving of Great Britain in the case of convalescence under regulation 11(3)(a)(ii), but not in the case of treatment under regulation 11(3)(a)(i) and in fact that is not the case, as the opening words of regulation 11(3) expressly provide (see above). In the light of the opening words, the more natural meaning is indeed that the two provisions both require that the purpose of the absence (whether to treat a medical condition or to convalesce from a condition) is required from the outset of the absence in each case. I agree with Ms Ivimy KC that the proviso in regulation 11(3)(a)(ii) simply reflects the specific rules governing convalescence which require prior certification of the underlying condition by an approved medical practitioner: see regulation 11(3)(a)(ii) and regulation 11(5).

Mr Kane also argued that the mischief at which the “solely in connection” condition was directed was the possibility of claimants obtaining minor medical treatment to justify time abroad. “Solely in connection” had only a qualitative and not a temporal dimension and was consistent with the drafting of the regulation. That I regard as an ingenious flight of fancy, but it has no warrant in the actual wording of the regulation, which does not refer to major or minor treatment, but to “treatment”.

Mr Kane undoubtedly raises hard cases. Can it be that UC must be disallowed for an entire period of absence which has been solely in connection with qualifying medical treatment simply because the period is extended for other reasons, e.g. a last minute delayed flight? The answer is that regulation 11 is explicit in its terms and that it must be read in the context that awards of UC are made by reference to monthly assessment periods and by reference to the rules governing changes of circumstance.

Entitlement can only ever be determined at a given point in time. If a claimant’s temporary absence meets all the conditions for disregard under regulation 11(3) in a given assessment period, but there is then a change of circumstance which means that the conditions are no longer satisfied (such as a delayed flight extending absence beyond six months, or the reason for absence changing from medical treatment to holiday), that change would have to be notified.

Any supersession would take effect in relation to the period in which the conditions for disregard ceased to be satisfied, but would not take effect for prior periods. At any given decision point, however, the relevant conditions must be met for the whole period of absence for it to be disregarded. That there may be hard cases does not

As Underhill LJ said in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778; [2020] PTSR 1872 at [113]:

“113.

I start by saying that I recognise, as does Rose LJ, the extraordinary complexity of designing a system such as universal credit, and that it necessarily involves a range of practical and political assessments of a kind which the court is not equipped to judge. I also accept that in order to be workable any such system may have to incorporate bright-line rules and criteria which do not discriminate fully between the circumstances of different individuals … For those reasons I fully accept that a court should avoid the temptation to find that some particular feature of such a system is ‘irrational’ merely because it produces hard, even very hard, results in some individual cases.

Finally, the Appellant argues that housing benefit rules allow for transfer between different exceptions in relation to absence abroad during an award. Insofar as this raises Ground 2A of the proposed grounds of appeal, I do not give permission for it to be relied upon (see below), but insofar as it bears on the construction of regulation 11 I reject the argument in any event. The complex housing benefit rules turn on application of conditions governing occupation of the home. They pre-date UC, which was intended to be a simplification and departure from existing rules governing benefits for housing. There is no reason why there should be any read across from housing benefit rules on temporary absence to the entirely different legislative scheme in regulation 11. Just how different the provisions are is exemplified by the details which Mr Kane set out in the course of his skeleton argument, which I have set out above. They bear no relationship to the provisions in regulation 11 of the 2013 Regulations and cannot be read across into them.

Mr Kane sought to rely on the terms of the newly-inserted regulations 11(1)(b)(iii), (4A) and (4B) in support of his argument, but those provisions only came into force on 18 July 2025 and do not assist in the interpretation of the regulations at the date of decision in May 2023. To the extent that they are relevant at all, they simply serve to explode the argument yet further. The newly-inserted regulation 111(1)(b)(iii) is again an alternative (“either .. or ... or”) to regulations 11(1)(b)(i) and 11(1)(b)(ii), not an addition to, or cumulation with, them. One can no more move from (i) to (iii) than one can from (i) to (ii).

Although Mr Kane also sought to derive comfort from the decision in NJ, properly understood it does not assist him. There Upper Tribunal Judge Stout was considering the exception in regulation 153 of the ESA Regulations 2008 and whether the fact that the claimant’s temporary absences from Great Britain in order to be treated by exposure to sunlight at her family home in Spain fell within the exception so as to enable her to continue to be entitled to benefits when abroad. As in the case of regulation 11(3) of the 2103 Regulations, one of the conditions for the exception required absence solely in connection with arrangements made for relevant treatment. In that context Judge Stout held that

“23.

So far as relevant to the present appeal, the exception in regulation 153 does not apply unless “the claimant is absent from Great Britain solely … 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).

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26.

There was no real difference between the parties as to what “solely” means in this case. Both were agreed that it means that the treatment needs to be the only reason for the absence ... The change in language does, though, suggest to me that the legislator wished to make clear that the reason or purpose was to be judged objectively and not simply by reference to the stated reason or purpose of the claimant. I return to this point below.

27.

Although Mr Edwards had sought to refer back to case law on predecessor versions of the legislation in support of his argument that a similarly strict approach should be taken to the current regulations, it is in fact apparent from CIB/1956/2001 (to which Mr Hallström referred) that “solely” is actually a ‘tightening up’ on the wording in the predecessor legislation. The predecessor legislation, as I have noted, required absence to be for the “specific purpose” of being treated. The predecessor legislation was interpreted by Judge Rowland in CIB/1956/2001 at [5] as requiring only that treatment be an “operative purpose” of the absence, even if it was not the main (let alone “sole”) purpose of the absence. It is plain that “solely” is a stricter test.

28.

Both parties were agreed that the fact that someone does things other than being treated while away from Great Britain does not mean that they are not absent “solely in connection with” the treatment. For example, the fact that someone abroad for the purpose of treatment also has breaks between treatment in which they go swimming, eat, or engage in sight-seeing does not necessarily change the purpose of the absence, although both parties accept that it might if the Tribunal concludes that the activities engaged in between treatments are actually part of the purpose for going (or staying on after arrival). I agree, and would add that “solely” does not allow for any “dominant purpose” type test: as soon as there is more than one purpose to the absence, regulation 153 ceases to be satisfied.

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30.

As a matter of principle, both parties are also agreed that, in deciding whether treatment is the “sole” reason for the absence, the Tribunal must not confine itself to considering whether, subjectively, it is the claimant’s sole reason for absence, but must consider the matter objectively. As already noted, I agree that the test must be objective, and that the use of the language “in connection with” rather than “purpose” makes clear that the Tribunal has to consider the matter objectively.”

None of that assists in the Appellant in this case. Quite the reverse.

Mr Kane sought to derive assistance from paragraph [35] of the judgment to the effect that

“It is important in this respect not to overlook that the Tribunal was, quite properly, considering the claimant’s reasons for “going to Almeria for extended periods of time” (emphasis added). It was right to do so because, as both parties accepted in the course of argument, the regulation 153 exception only becomes relevant after the regulation 152 exception has been exhausted. Any claimant can be absent from Great Britain for a “short absence” of up to four weeks without losing their entitlement to benefit. The issue for the Tribunal in this case was therefore what NJ’s reasons were for extended periods of absence going beyond four weeks. In so saying, I am mindful that a Tribunal of Commissioners in R(S) 1/90, addressing the predecessor provisions in the 1975 Regulations, held that in order to qualify for that exception the claimant needed to have had treatment as a “specific purpose” for the absence before going abroad. I am not sure whether it would necessarily be right to read that decision across to the differently-worded provision in the ESA Regulations, but I do not need to decide that point in this case. Even assuming that the necessary purpose needs to be established before departure from Great Britain in accordance with R(S) 1/90, the Tribunal in this case was still right to focus on the claimant’s reasons for extended absences going beyond the initial four-week period as it is only that extended period that needs to fall within the scope of regulation 153. Any shorter period will be caught by regulation 152. Once that point is understood, it can readily be seen that it was open to the Tribunal to accept that NJ’s reasons for extended absences (going beyond ‘normal holiday’ length, and in a place that NJ would not choose to go on holiday) were rational.”

However, that must be read in the light of the preceding paragraphs, and all that Judge Stout was saying was that she did not need to decide the point which arose in R(S) 1/90, but that in any event, on the assumption that the necessary purpose needed to be established before departure from Great Britain, the Tribunal in the case before her was still right to focus on the claimant’s reasons for extended absences going beyond the initial four-week period. Once that point was understood, it could readily be seen that it was open to the Tribunal to accept that NJ’s reasons for extended absences (going beyond “normal holiday” length, and in a place to which she would not choose to go on holiday) were rational.

That is explained by what she said in the next two paragraphs:

“36.

The Secretary of State also submits that, if the Tribunal had taken the correct approach, it would have been bound to infer that part of the reason for the absence was the fact that the Almeria property is NJ and Dr J’s second home and thus one of NJ’s reasons for absence must be to live in and maintain a family home (or, at a minimum, to accompany her husband while he does so). However, again, the Tribunal was rightly focusing on NJ’s reasons for extended periods of absence. The Tribunal was clearly alive to the Secretary of State’s argument the fact that the property is their second home meant that the claimant must have more than one purpose in staying there for extended periods. Those facts are in the judgment, but the Tribunal rejects the Secretary of State’s case in that respect for essentially the same reasons as it rejects the Secretary of State’s case about holidays. As the judge puts it at [31], “I am wholly satisfied that this is not a case of a couple simply spending time holidaying in their second home … the climate at their home in Almeria provides respite from her condition as exposure to sunlight increases her serotonin levels, thus alleviating some of her symptoms, and for that specific reason they seek to spend extended periods of time there”.

37.

While many Tribunals would not have reached the same conclusion, I am not persuaded that this Tribunal’s decision was perverse, particularly given its findings as to the severity of the claimant’s OCD condition, and the credibility of NJ’s and Dr J’s evidence as to the positive impact on her of spending time in Almeria. These factors together explain the Tribunal’s conclusion that in this particular case the sole reason for NJ spending extended periods of time in Almeria was to alleviate her condition and that holidaying or maintaining of their second home was not part of her reasons for spending an extended period of time there. The fact that by staying for extended periods they may also enjoy the opportunity of holidaying or maintaining their second home does not prevent the Tribunal from concluding that the sole purpose of their extended stays was the treatment. Provided a Tribunal is satisfied for adequate reasons (as this Tribunal was at [21]) that these were merely incidental benefits (“effects”, to use Lord Brightman’s term in Mallalieu) rather than the purpose of the extended stay, there is nothing wrong in law with the Tribunal reaching the conclusion that this Tribunal did in this case.”