AM v The Secretary of State for Work and Pensions

A temporary absence is disregarded under Regulation 11(1)(b)(i) only where, at the material time, it was both not expected to exceed one month and did not in fact exceed one month. For a universal-credit supersession, the material circumstances must be assessed by the end of the assessment period in which the change is said to have occurred.

Where there is no finding that, by that date, the claimant expected the absence to exceed one month, and the absence had not then exceeded one month, the disregard applies. The award for that assessment period remains payable and cannot be treated as an overpayment.

The claimant had received universal credit since 2016. He left Great Britain on 17 June 2021 intending to return after three weeks, but travel restrictions delayed his return until December 2021.

The Secretary of State superseded his award from the beginning of the assessment period commencing 29 May 2021 and treated the payment for that period as recoverable. The First-tier Tribunal dismissed his appeal. It held that his eventual absence of more than one month could not be disregarded.

On appeal, the Upper Tribunal considered the proper application of Regulation 11(1) of the Universal Credit Regulations 2013, read with the effective-date rule in paragraph 20 of Schedule 1 to the Decisions and Appeals Regulations.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and remade.

2. Regulation 11(1)(a) was satisfied because the claimant was entitled to universal credit immediately before leaving Great Britain. Under Regulation 11(1)(b)(i), the temporary-absence disregard depends on two cumulative conditions: the absence must not be expected to exceed one month and must not in fact exceed one month.

3. Paragraph 20 of Schedule 1 to the Decisions and Appeals Regulations requires a change-of-circumstances supersession to take effect from the first day of the assessment period in which the change occurred. The relevant inquiry was therefore whether the conditions for the disregard had ceased to be met by the end of the assessment period on 28 June 2021.

4. By that date, the claimant had not been absent for more than one month. The First-tier Tribunal accepted that he had intended to return after three weeks, but did not find that his intention changed before 28 June or that his absence was otherwise expected to exceed one month by then. It was therefore bound to disregard the absence for the assessment period beginning on 29 May 2021.

5. The payment for that period was made in accordance with entitlement and was not an overpayment. Exercising its powers under section 12 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal remade the decision rather than remitting it, because the findings of fact were sufficient and remaking avoided further delay.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal’s decision for material error of law, and remade it.
• First-tier Tribunal (Social Entitlement Chamber): On 3 May 2023, under reference SC154/23/00205, dismissed the claimant’s appeal against the Secretary of State’s decision of 30 July 2021.