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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
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
In a regulation 11(2) case (bereavement), a claimant is still relying on regulation 11(1)(b)(i), but the time period is simply extended.
It is possible to go from regulation 11(1)(b)(i), whether or not extended by regulation 11(2), to regulation 11(1)(b)(iii) (where reg 11(4A) is engaged).
It must be possible to go from regulation 11(1)(b)(i) (again, whether or not extended by regulation 11(2)) to reg 11(1)(b)(ii) (where regulation 11(4) is engaged). Otherwise, it would lead to an absurd result insofar as the latter concerns regulation 11(4) (mariners; continental shelf workers in a designated/prescribed area).
Regulation 11(3) occupies the same position within the structure of regulation 11 as does regulation 11(4). There cannot be a structural problem with going from regulation 11(1)(b)(i) to (ii) unless the “solely in connection with” requirement makes it so.
Similarly, it would be possible to go from regulation 11(3) to regulation 11(4) or vice versa.
Third, adopting AM’s reconciliation of regulation 11 with the assessment period concept, the question is: was there a change of circumstances justifying supersession by the end of a given assessment period.
The Appellant submits that AM lends some support to the possibility of an absence being disregarded initially on the basis of regulation 11(1)(b)(i) and then under regulation 11(3): “the absence” for the purpose of regulation 11 is not immutable. In Assessment period 2, the assessment period ceased to be one which was disregarded. It is not the period of absence which is disregarded, but the fact of the claimant’s absence.
In circumstances where entitlement continues until the supervening circumstance (here, a need for medical treatment), there are no grounds for supersession. If the relevant regulation 11 time period is exceeded, then there would be grounds to supersede and disallow the award.
A claimant who exceeds one month of absence and does not fall within regulation 11(2), 11(3) or 11(4) will have his award superseded and disallowed effective from the beginning of assessment period 2.
- 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