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Justification
Justification
The standard of justification is in issue. Although clearly a measure in social and economic policy, it is submitted there can be expected to be a disparate impact on disabled persons. Lord Reed PSC observed in SC at [188], that the ECtHR has “held that very weighty reasons have to be put forward before a difference in treatment on the ground of gender be regarded as compatible with the Convention, whether the alleged discrimination is direct or indirect”.
The Appellant accepts there is some force in the point that certain insurable risks are assumed by claimants travelling abroad. Persons who require medical treatment unconnected to status of disability (for instances, natural disasters and accident cases) can fairly be said to have taken a risk of travelling. The Appellant submits that (assuming this ground arises) it applies in disability-related medical treatment cases, but not in accident cases because it is within the scope of a relevant status outside a claimant’s control. There is a greater risk to disabled persons of being “stranded” due to medical needs, particularly in persons with comorbidities.
The Secretary of State considers the justification for the regulation 11(3) rule allowing treatment that cannot be obtained in the country, or treatment abroad on the NHS. But that is not what the provision achieves. Necessity may of course be relevant to assessment of whether a given absence is as a matter of fact solely in connection with medical treatment.
The Secretary of State contends there are evidential and operational difficulties associated with verifying medical treatment. It is said to be more challenging accurately to verify the detailed reasons for being abroad and there is an increased risk of fraud. Those concerns are misplaced.
- Heading
- Section 1
- The Statutory Framework
- The Background Facts
- The Decision of the Tribunal
- Ground 1: The Tribunal erred in its treatment of regulation 11(3)(a)(i) of the 2013 Regulations in requiring the need for medical treatment to predate a claimant’s departure from Great Britain
- Ground 1: Interpretation of the 2013 Regulations
- The absence is in connection with the death of a close family member and The Secretary of State considers it unreasonable to expect the claimant to return within one month
- A claimant who does fall within those paragraphs will have retain entitlement in assessment period 2
- The Secretary of State (or the Tribunal) may extend time by up to a further month
- Ground 2: Interference with Convention rights
- Status
- Difference in treatment
- Justification
- This is likely to be a relatively small cohort These are not concerns unique to a need for treatment postdating a claimant’s departure from Great Britain. Decision makers already need to make evaluative judgements on issues of intention to return
- Remedy
- Ground 2A: Discrimination with respect to housing benefit claimants
- Justification
- Why the Upper Tribunal is invited to grant permission: factors other than merits
- Ground 3: the Secretary of State’s concession as to the amount of overpayment
- Ground 3: assessment period beginning 24 February 2023 . The Secretary of State invited the Upper Tribunal to the appeal in part on an additional ground not raised by the Appellant. The Appellant’s ab
- Ground 1: even if the Appellant’s absence from 30 March 2023 to 23 April 2023 was solely in connection with qualifying treatment, that absence cannot be disregarded under regulation 11(3)(a)(i). The n
- Ground 2: the Appellant alleges that the one month rule in regulation 11(1)(b) discriminates indirectly against him Appellant as a disabled person in breach of Article 14 read with A1P1. There is insu
- Temporary absence
- qualifying convalescence: regulation 11(3)(a)(i) and (ii)
- Submissions Regulation 11(1)(b): assessment period beginning 24 February 2023
- Ground 1: interpretation of regulation 11(3)(a)(i)
- Ground 2: regulation 11(1)(b) and Article 14 ECHR
- No evidential basis for finding of indirect discrimination
- Justification
- A rule of this kind would necessarily expand the cohort of claimants who may retain
- Remedy
- Ground 2A: differences in Housing Benefit and UC rules and Article 14 ECHR
- Conclusion
- The Appellant and his wife were not entitled to UC from 24 March 2023 to 23 April 2023
- Analysis
- Ground 2A
- Ground 1
- Ground 2
- Justification
- Remedy
- Conclusions