[2025] UKUT 259 (AAC)

The Secretary of State (or the Tribunal) may extend time by up to a further month

Sixth, that interpretation avoids inconsistency with the housing benefit scheme (if the reading below holds); a scheme which is structurally similar.

The housing benefit rules are set out here rather than under Ground 2A. The Secretary of State has at this point sought to rebut the Article 14 argument rather than disagreeing on construction of the Housing Benefit Regulations, but it is acknowledged this may well be a point of dispute.

If the effect of the 2013 Regulations is to require a preplanned absence, the Appellant submits there would be significantly different protection of a claimant’s housing costs depending on whether he receives UC housing costs element or housing benefit.

While the permissible periods of absence were tightened by the Housing Benefit and State Pension Credit (Temporary Absence) (Amendment) Regulations 2016 to align more closely with the relevant periods for UC absences, the structure of housing benefit was left unchanged.

In the Housing Benefit Regulations, absence abroad is managed as an aspect of the condition that a claimant is normally occupying the home, rather than part of a basic condition of presence in Great Britain.

Regulations 7(13C) and (13D) make provision for a person abroad to be treated as occupying a dwelling as his or her home for up to 4 weeks. Regulation 7(13E) makes provision for extension to up to 8 weeks in the case of a relevant death, analogous to regulation 11(2) of the Regulations.

Regulation 7(17C), taken with regulation 7(16), provides for a longer 26 week permissible absence abroad in the case of temporary absentees who are, among other conditions

“(ii)

resident in a hospital or similar institution as a patient; or

(iii)undergoing, or as the case may be, his partner or his dependent child is undergoing, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation; or

...

(vii)

a person who is receiving medically approved care provided in accommodation other than residential accommodation …”.

This structure provides the possibility to transfer between different exceptions in relation to absence abroad during an award. CH/996/2004 demonstrates in the housing benefit context the possibility of changing the basis of disregard.

That involved a claimant who left the UK on 28 February 2001 at [4] and booked a return flight on 30 April 2001 for 11 June 2001 at [19]. This meant that it stopped being “unlikely” that he would return home within 13 weeks (the permitted length of absence from the home at the time). Sometime after 30 April 2001, he became ill with viral hepatitis: at [6, 20]. His underlying entitlement to housing benefit resumed, ending when his absence was no longer unlikely to exceed 52 weeks (the permitted length of absence from the home in cases of medical treatment at the time): at [20.3].

Finally, this interpretation avoids the difficult consequence that a claimant is not required to “reset” his or her absence to obtain medical treatment. The Secretary of State’s interpretation permits a claimant (if he can achieve the medically inadvisable by returning to Great Britain) to reset the clock and begin a new period of absence. This is a point which is submitted also to go to justification.