Court of Appeal clarifies meaning of Employment and Support Allowance absence rules

The Court of Appeal has allowed an appeal by the Secretary of State for Work and Pensions against a decision of the Upper Tribunal, concerning the rules on permitted absence for Employment and Support Allowance (“ESA”). Short absences abroad of up to four weeks do not affect entitlement to ESA (reg. 152 of the Employment and Support Allowance Regulations 2008). Longer absences may also be permitted for up to 26 weeks, provided that the more exacting conditions of reg. 153, relating to absence to receive medical treatment, are met.

NJ and her husband, a retired medic, had a second home in Spain. They considered that sunshine in Spain improved the symptoms of NJ’s Obsessive Compulsive Disorder, and the First-tier and Upper Tribunals both decided that, on the particular facts of the case, the conditions in reg. 153 were met. The Secretary of State appealed, arguing that both tribunals had erred in their construction of reg. 153. The Court of Appeal upheld the appeal, accepting the Secretary of State’s arguments that: (a) regs 152 and 153 operated independently of one another, such that the conditions in reg. 153 had to be satisfied for the whole period of absence; (b) therefore, the sole reason for absence needed to be medical treatment; (c) exposure to sunlight was not medical treatment; and (d) in any case, NJ’s husband was not “appropriately qualified” for the purposes of reg. 153 since he did not have relevant expertise in the treatment of OCD and was also no longer licensed to practice medicine.

Julia Smyth KC, leading Denis Edwards, represented the Secretary of State.