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Justification
Justification
In those circumstances the issue of justification does not arise, but it should be noted that the rule which the Appellant challenges involves a judgment on social and economic policy in the field of welfare benefits and that the relevant test, as Lord Reed explained in SC is whether the rule is “manifestly without reasonable foundation”.
Although in the circumstances I do not have to decide the point, it seems to me that the submissions by Ms Ivimy KC on behalf of the Secretary of State, which I have set out in paragraphs 111 to 115 above, are compelling.
As to the Appellant’s attempts to challenge those assertions by the Secretary of State, which I have set out at paragraph 70 above:
there is no evidence one way or the other that the relevant cohort is likely to be small, but it cannot be regarded as more likely than not that it will in fact be small
the fact that judgments may have to be made in other fields, such as intention to return, or bereavement cases, does not establish that the general rule in regulation 11(1)(b)(i) is manifestly without reasonable foundation
the expression of optimism that absence abroad owing to medical treatment which delayed return will be the sort of case where supporting documentation can readily be expected of a claimant is not borne out by judicial experience
reference to the position of the Secretary of State in testing a claimant’s evidence at a hearing and to make representations if the refusal is challenged suggests if anything that the concerns expressed by her about evidential and operational difficulties are indeed made out and a matter of live concern
it is said that the critical distinction is between medical absence connected to a disability and other absence and that, contrary to the Secretary of State’s concern about policy implications for the other permitted absence periods, there is no reason for there to be any broader impact, why should the line be drawn there? What about hard cases arising out of natural disasters or accidents involving other family members?
- 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