KK v The Secretary of State for Work and Pensions

Regulation 11 of the Universal Credit Regulations 2013 does not permit a claimant to combine or phase different temporary-absence disregards. The six-month medical-treatment disregard applies only where the claimant’s absence from Great Britain, viewed as a whole, is solely connected with qualifying treatment, convalescence or care. It cannot extend a one-month absence that began for another purpose, such as a holiday.

Entitlement is assessed by reference to assessment periods. A change ending a disregard takes effect from the first day of the assessment period in which it occurs. A Convention challenge to the one-month rule requires evidence of indirect discrimination in the claimant’s circumstances. The Upper Tribunal cannot use section 3 of the Human Rights Act 1998 to create a new statutory exception.

The appellant travelled from Great Britain to India for a holiday, intending to return within one month. While abroad, he became ill, received hospital treatment and was advised to take bed rest, delaying his return beyond one month. The First-tier Tribunal held that the absence could not be disregarded under regulation 11 and superseded the universal credit award for two assessment periods.

On appeal, the issues were whether regulation 11(3)(a)(i) permitted the absence to be split into phases, whether the one-month rule indirectly discriminated against disabled people contrary to Article 14 read with Article 1 of the First Protocol, and whether a late housing-benefit comparison should be added. The Secretary of State also accepted that any supersession could operate only from the second assessment period.

1. Disposition. The First-tier Tribunal’s decision contained an error of law. The Upper Tribunal remade the decision. The award was superseded from 24 March 2023, the recoverable overpayment was £1,880, permission to add Ground 2A was refused, and the appeal was otherwise dismissed.
2. Assessment periods. The appellant’s absence during the assessment period beginning on 24 February 2023 was disregarded under regulation 11(1)(b)(i), because it was not expected to exceed and did not exceed one month during that period. The relevant change occurred in the following assessment period, beginning on 24 March 2023.
3. Construction of regulation 11. Regulation 11(1)(b)(i) and regulation 11(3) are alternative disregards. Regulation 11(3) creates a separate six-month disregard; it does not extend or cumulate with the one-month disregard. The phrase “solely in connection with” requires singularity of purpose and applies to the whole period of temporary absence. An absence beginning as a holiday therefore cannot become a qualifying medical absence merely because illness later delays the claimant’s return. The same structure applies to regulation 11(4). The distinct proviso concerning an illness existing before departure in regulation 11(3)(a)(ii) does not imply a different temporal approach under regulation 11(3)(a)(i).
4. Convention ground. The appellant produced no sufficient evidence of indirect discrimination based on disability, either generally or in his own case. The Upper Tribunal could not apply section 3 of the Human Rights Act 1998 on an abstract or hypothetical basis. The suggested readings would amount to judicial legislation by creating a new exception and conditions.
5. Ground 2A. The proposed comparison with housing benefit was raised too late and would require further evidence and delay. It also had no reasonable prospect of success because the two schemes operate through materially different statutory structures.

• Upper Tribunal (Administrative Appeals Chamber): [2025] UKUT 259 (AAC) allowed the appeal to the extent that the First-tier Tribunal had incorrectly superseded the award from 24 February 2023. The decision was remade, with supersession from 24 March 2023 and a recoverable overpayment of £1,880. Permission to add Ground 2A was refused and the appeal was otherwise dismissed.
• First-tier Tribunal (Social Entitlement Chamber): decision dated 1 November 2023 under file reference SC242/23/05918 dismissed the appeal and treated the appellant as disentitled for both relevant assessment periods.