[2025] UKUT 259 (AAC)

Ground 1: interpretation of regulation 11(3)(a)(i)

The Appellant argues that, when interpreting regulation 11(3)(a)(i), temporary absence may be taken as “the fact of being absent”, which he calls the “given time approach”, rather than by reference to the entire period of absence, which he calls “the entire trip approach”. He argues that a period of absence which is not solely for qualifying treatment at the outset of the absence may nevertheless be disregarded if, after the trip has commenced, the continued absence is solely for qualifying treatment and the other conditions for disregard are met (i.e. the prior entitlement and six month period conditions).

This is contrary to the wording of regulation 11(3), the structure of regulation 11 as a whole and its purpose:

Regulation 11(1) determines when “a person’s temporary absence from Great Britain is disregarded”. Each of the disregard exceptions includes a time limit for temporary absence expressed as a period of months. These periods must be calculated for each assessment period by reference to the expected or actual length of the temporary absence. As to when temporary absence commences and ends for this purpose, the natural meaning of the words “temporary absence from Great Britain” is a period which commences when the claimant leaves Great Britain and ceases when he or she returns. Temporary absences from Great Britain which meet certain criteria – as to length, purpose and/or circumstance – are then disregarded.

For medical treatment, in addition to a maximum 6 month period, regulation 11(3)(a)(i) provides that “the absence” must be “solely in connection with” qualifying treatment. The reference to “the absence” refers back to 11(1): “a person’s temporary absence from Great Britain”. “Solely” in this context, on its natural meaning, refers 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.

The Appellant accepts the former proposition, but not the latter. In addition to running contrary to the natural meaning of the words “the absence” and “solely” in regulation 11(3) (see above), this construction does not work when regulation 11 is read as a whole. Since the Appellant accepts that the prior entitlement condition applies, on his case the absence period which is to be disregarded must commence during the initial one month disregard period allowed by regulation 11(1)(b)(i) (otherwise there could be no prior entitlement). Presumably, he accepts that the period of absence for the purposes of regulation 11(1)(b)(i) must be calculated by reference to when the claimant left Great Britain. But his case is that regulation 11(3) then permits that one month period to be extended, with the subsequent period of absence calculated by reference not to when the claimant left Great Britain but by reference to its purpose. There is no good reason why the same concept - “the absence” - should be construed in different ways within the same section.

Moreover, regulation 11(1) provides that the exceptions in regulations 11(1)(b)(i) and 11(3) are in the alternative (“either … or”). 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 drafters would have included an extension provision similar to regulation 11(2). The wording of regulation 11(3) is different: it does not extend the one month period, but provides for an entirely separate six month period of disregard. Further, the effect of the Appellant’s interpretation is that, if a claimant happens to require treatment during the first month of a trip abroad, he is entitled (arbitrarily) to claim for up to a seven month total period of absence from Great Britain, when the intention is clearly that the maximum absence allowed should be six months.

Nor does the Appellant’s construction accord with the purpose of regulation 11(3). Regulation 11(3) is (as the above analysis shows) 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. Their position contrasts with those who unexpectedly experience a medical emergency while abroad: anyone who chooses to travel can be expected to assume that risk and, in principle, to insure against it, see the witness statement of Jackie Germain at [30]. This 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). Regulation 11(4) is an alternative and not an extension to regulation 11(1)(b)(i).

The proviso in regulation 11(3)(a)(ii) that the claimant must have had the relevant medical condition “before leaving Great Britain” does not assist the Appellant either. He argues that the absence of such a proviso in reg. 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. 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. Nor is there a 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 regulation 11(3)(a)(i). The more natural meaning is that the two provisions both require that the purpose of the absence – to treat a medical condition, or to convalesce from a condition – is required from the outset of the absence in each case. 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).

The Appellant argues that his “given time” approach must be correct because it cannot have been intended 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 delayed flight. But regulation 11 must

Finally, the Appellant argues that housing benefit rules allow for transfer between different exceptions in relation to absence abroad during an award. But as the Appellant points out, 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.