Secretary of State for Work & Pensions v NJ

Regulation 153 of the Employment and Support Allowance Regulations 2008 permits continued contributory ESA during a temporary absence abroad only where the absence is solely connected with arrangements made for qualifying treatment. Regulation 152 and regulation 153 operate independently, so the stricter test applies to the relevant absence, not merely the period after four weeks. The arrangements must concern treatment itself, rather than travel or residence. Treatment must be received from, or provided or supervised by, another person. Natural exposure to sunlight is not treatment within regulation 153. A retired surgeon without expertise in the claimant’s mental-health condition was not appropriately qualified to supervise it. The appeal was allowed.

The respondent received contributory employment and support allowance because obsessive compulsive disorder limited her capability for work. She and her husband spent lengthy periods at their second home in Spain, where she considered that stronger sunlight improved her symptoms. The First-tier Tribunal allowed her appeals against decisions disallowing ESA after four weeks and seeking recovery of an overpayment. The Upper Tribunal dismissed the Secretary of State’s appeal: [2024] UKUT 194 (AAC).

The Secretary of State appealed to the Court of Appeal on the construction and application of regulation 153 of the Employment and Support Allowance Regulations 2008. The central issues were whether the absences were solely for treatment, whether exposure to sunlight constituted treatment, and whether the respondent’s husband was appropriately qualified to provide or supervise it.

1. Appeal allowed. Lord Justice Cobb, with Lady Justice Whipple and Lady Justice Elisabeth Laing agreeing, held that the First-tier Tribunal and Upper Tribunal had erred in law in construing and applying regulation 153 of the Employment and Support Allowance Regulations 2008. The Secretary of State was entitled to refuse ESA for periods exceeding four weeks spent abroad and to recover overpaid amounts.
2. Regulation 152 and regulation 153 operate independently. Regulation 152 permits entitlement during the first four weeks of a temporary absence without requiring a reason for the absence, subject to its terms. Regulation 153 concerns the first 26 weeks of a temporary absence and requires the absence itself to be solely in connection with arrangements made for qualifying treatment. That requirement is not confined to any period after the first four weeks.
3. The arrangements must relate to the claimant’s treatment. They do not include ancillary arrangements for travelling to, or living in, the place where the claimant stays. Treatment must be provided by, or under the supervision of, a person appropriately qualified to carry it out.
4. In this context, treatment is something received from, or provided or supervised by, someone other than the claimant. Rehabilitative treatment must be understood as a specific course, diet or other regimen. Ordinary exposure to naturally occurring sunlight while living a routine daily life abroad was not medical or rehabilitative treatment and was not treatment provided by a person.
5. Even if exposure to sunlight could constitute treatment, the husband was not appropriately qualified to provide, carry out or supervise treatment for obsessive compulsive disorder. His former surgical practice, lack of expertise in psychiatry, mental health or OCD, and loss of his practising licence were material. The tribunal had also made no finding that he supervised exposure to sunlight.
6. The appeal was allowed on Grounds 1 and 2. Ground 3, concerning perversity, did not require determination.

• Court of Appeal (Civil Division): Appeal by the Secretary of State allowed on Grounds 1 and 2; the court held that the tribunals had erred in law in their construction and application of regulation 153.
• Upper Tribunal (Administrative Appeals Chamber): Appeal from the First-tier Tribunal dismissed: [2024] UKUT 194 (AAC).
• First-tier Tribunal (Social Security): NJ’s appeals against the ESA disallowance and overpayment decisions allowed, and the entitlement and overpayment decisions set aside.