[2025] UKUT 259 (AAC)

The Secretary of State accepts that the application of regulation 11(1)(b), as a rule governing entitlement to UC, in principle falls within the ambit of A1P1. There was no evidence before the Tribunal, however, to establish prima facie indirect discrimination on grounds of disability. There was no evidence concerning any disability of the Appellant. Nor was there any evidence that the medical condition for which he was treated whilst abroad was linked to any disability. The evidence on this latter issue appears to be to the contrary: the Appellant states in his reasons for seeking mandatory reconsideration that “the reason for my extended absence was due to unforeseen health issues. While I was abroad, I fell seriously ill and was admitted to a hospital for medical treatment”. Nor was there any evidence establishing that disabled persons generally, as compared to other persons in receipt of UC, are more likely to be unable, if they experience a health emergency abroad, to travel home within the 1 month standard disregard period.

These factual matters were simply not explored before the Tribunal because this Ground was not advanced. This evidential deficiency not been made good before the Upper Tribunal. Ms Ivimy KC submitted that these evidential deficiencies mean that there is no proper basis on which the Upper Tribunal can proceed to make a finding that the legislation on its ordinary meaning indirectly discriminates against disabled people generally or the Appellant in particular, nor any basis on which it can seek to interpret regulation 11(1)(b)(i) under s. 3 of the Human Rights Act 1998 (“the HRA”) HRA in a Convention compliant way (as the Appellant appears to invite it to do): see Imperium v Jersey Competent Authority [2025] UKPC 28 at [77-83] and R (Z) v Hackney LBC [2020] 1 WLR 4327 at [114] where the Privy Council and Supreme Court expressly warned against the Court applying s. 3 of the HRA or making findings that legislation is not compatible with Convention rights on an abstract or hypothetical basis, without close regard to the specific facts of the claimant’s case.