Secretary of State for Work and Pensions v NJ

For the medical-treatment exception to the requirement that an ESA claimant be in Great Britain, the absence must be objectively connected solely with treatment. There is no dominant-purpose test: incidental activities do not prevent entitlement, but any additional purpose for the absence does.

“Treatment” may include a self-administered regimen involving active agency, such as exposure to sunlight, provided it is similar or related to medical or physiotherapy treatment. Mere rest, convalescence, care or a change of air is insufficient. Treatment need not be effective, provided there is sufficient evidence that it can properly be described as treatment. No registration, specialist qualification or non-familial relationship is necessarily required for a person to be appropriately qualified to supervise it.

The Secretary of State appealed under section 11 of the Tribunals, Courts and Enforcement Act 2007 against the First-tier Tribunal’s decision of 16 September 2022. The First-tier Tribunal had upheld NJ’s appeals concerning entitlement to Employment and Support Allowance and an alleged overpayment.

NJ had spent four extended periods at her family home in Spain, where exposure to sunlight was said to alleviate her obsessive compulsive disorder. The central issues were whether regulation 153 of the Employment and Support Allowance Regulations 2008 applied, whether her husband was appropriately qualified to supervise the treatment, and whether the First-tier Tribunal should have included a medical member.

The appeal was dismissed. The First-tier Tribunal had not erred in law.

1. “Solely in connection with treatment.” The requirement is objective and concerns the real reason or purpose for the absence. It is stricter than a requirement that treatment be merely an operative purpose, and it does not permit a dominant-purpose test. Activities such as eating, swimming or sightseeing may be incidental effects of the absence, but the exception is not satisfied if they are themselves purposes for going or staying abroad. The First-tier Tribunal adequately considered the extended periods of absence and was entitled to find that holidaying and maintaining the second home were incidental rather than additional purposes.
2. Treatment and arrangements. The statutory language is broad. Treatment may be something done by the claimant without direct third-party action, but it must involve active agency and be similar or related to medical or physiotherapy treatment. Mere rest, convalescence, care or a change of air is not treatment. Effectiveness is not an essential requirement, although evidence of lack of efficacy may be relevant to whether the regimen can properly be described as treatment. Travel to Spain, living at the property and exposure to sunlight could constitute arrangements for treatment.
3. Appropriate qualification. Regulation 153 does not require registration, specialist psychiatric qualification or that the supervisor be unrelated to the claimant. Whether a person is appropriately qualified is fact-sensitive. The Tribunal was entitled to accept that NJ’s retired surgeon husband had transferable medical skills and was supervising her exposure to sunlight.
4. Panel composition. Deciding whether something is treatment under regulation 153 is ordinarily a mixed question of law and fact that a judge may determine alone. Any additional medical member under the Practice Statement was discretionary and could be challenged only on rationality grounds. The Secretary of State should ordinarily raise any panel-composition concern at the hearing.

The decision was confined to the particular facts. In most cases, the solely requirement and the requirement for supervision by an appropriately qualified person will be difficult to satisfy.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was not made in error of law.
• First-tier Tribunal (Social Entitlement Chamber): on 16 September 2022, NJ’s appeals were upheld and she was found entitled to ESA during the relevant periods of absence; no overpayment was due.