[2025] UKUT 259 (AAC)

As to remedy, in the event that I had found that the one month rule in regulation 11(1)(b) was unlawful on grounds of indirect discrimination, I agree with Ms Ivimy KC that any interpretation of regulation 11(1)(b) to extend the one month rule in the case of disabled persons would go well beyond statutory interpretation and would be an all to obvious exercise in purported judicial legislation which is impermissible under s. 3 of the HRA. It would require the Upper Tribunal to determine a new set of circumstances under which absence for medical reasons must be disregarded, including the appropriate period of absence, as well as other qualifying conditions.

All that was suggested was that “the interpretation of regulation 11 is, if not correct, at least tenable, and can provide a basis for a Convention-compatible reading which remedies the discrimination”. That is not a basis for an exercise under s.3 of the HRA.

Moreover, as the Appellant accepts, this is not a case where the Upper Tribunal, by disapplying a provision in the 2013 Regulations or otherwise, can treat him as being entitled to UC. That is because, in the absence of any applicable exception, s.4 of the 2012 Act applies and the Upper Tribunal is bound to give effect to it.

When I pressed Mr Kane in argument as to how regulation 11(3) should be read to achieve a Convention-compliant result he proffered two suggestions, either

“(3)

This paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months and is solely in connection (in qualitative terms rather than temporal terms) with—

(a)

the person undergoing—

(i)

treatment for an illness or physical or mental impairment by, or under the supervision of, a qualified practitioner, or

(ii)

medically approved convalescence or care as a result of treatment for an illness or physical or mental impairment, where the person had that illness or impairment before leaving Great Britain ...”

or a recasting along the lines of “medical treatment is the only reason for the claimant’s absence from Great Britain once other disregards have been exhausted”.

Both of these solutions are attempts at judicial legislation rather than interpretation of the regulation in a Convention-compliant fashion and I reject them.