[2025] UKUT 259 (AAC)

In any event, even if the Upper Tribunal were to consider that it could make a determination on this Ground, the rule in regulation 11(1)(b) is justified. The rule which the Appellant seeks to impugn involves a judgment of social and economic policy in the field of welfare benefits. The relevant test to determine justification is accordingly whether the rule is “manifestly without reasonable foundation”: R (SC) v Secretary of State for Work and Pensions [2022] AC 223 at [158].

As explained above, Parliament has chosen to introduce, through regulation 11(1)(b)(i), a general one month exception to the requirement that claimants be in Great Britain. That one month period applies to all claimants, including those whose absence abroad is unexpectedly extended by a medical condition or the need for medical treatment. Outside that one month period, exceptions are very narrowly drawn. This reflects the general importance attached to claimants meeting the basic conditions for entitlement to UC, including presence in Great Britain, which is a fundamental feature of the UC system.

Parliament has deliberately chosen to provide a one month and not any other longer period of disregard for all claimants who require unplanned medical treatment abroad. That is a discretionary judgment which was open to it. The rules as drafted pursue the legitimate aims that exceptions are: limited in scope so that they do not undermine the rule requiring presence in Great Britain (which is a fundamental condition of UC and protects public funds); fair and consistent between claimants; avoid complexity and are administratively workable - including by minimising the need for decision makers to consider evidence and/or exercise discretionary judgment, see generally the witness statement of Jackie Germain at [28-33]. The one month rule is rationally connected to all of these aims. The Courts have repeatedly recognised the need for bright line rules of this kind in the context of UC and warned the Court against making findings that a particular rule is irrational, even if it produces hard results in an individual case: see e.g. Pantellerisco v Secretary of State for Work and Pensions [2021] EWCA Civ 1454 at [43].

The Appellant’s case appears to be that disabled persons should be afforded a longer disregard period if their disability gives rise to a health issue which requires them to stay abroad for a period longer than one month. In effect, the Appellant argues for an entirely new exception to be inserted into regulation 11 for disabled persons temporarily absent abroad. As to this: