UC temporary absence abroad

There is a difference between an absence for ‘treatment’ (reg 11(3)(a)(i)) and an absence for ‘convalescence or care’ (reg 13(a)(ii)).

In relation to the latter, the absence must be solely in connection with “medically approved convalescence or care as a result of treatment for an illness or physical or mental impairment, where the person had that illness or impairment before leaving Great Britain”.

If your argument is based on convalescence, then you have an immediate difficulty in that your client’s injury did not exist ‘before leaving Great Britain’.

That would not be a barrier to extending a temporary absence based on ‘treatment’ as there does not appear to be a similar restriction, however the DWP view still appears to be that receiving treatment for an injury sustained abroad does not qualify for the extended disregard - probably because it cannot be said that the absence was ‘solely’ for that reason. See ADM C1988 Example 2:

Paul a UC claimant who travelled to Cyprus on holiday on 1 August 2021 with the intention of staying for 3 weeks. Unfortunately, whilst on holiday he had an accident and needed a hip replacement which meant he could not travel for 8 weeks. As a result, Paul was outside the UK for more than one month. The accident occurred after Paul had left GB. The DM determined the claimant was not entitled to UC from 1 September 2021 when Paul’s absence exceeded one month. 

I am not wholly convinced about the DWP reading of this. I don’t see why you can’t have a situation where somebody leaves the UK due e.g. to a holiday but then becomes ill and it can fairly be said that their continued absence is ‘solely’ in connection with medical treatment. I think the DWP reading rather makes the words “where the person had that illness or impairment before leaving Great Britain” in reg 13(1)(a)(ii) redundant because on their reading, it is not clear how their could possibly be a situation in which you were absent ‘solely’ in connection with medical treatment but that the absence did not relate to an illness occurring before you left GB.

So I think I might be persuaded that your client’s case is arguable, although I am sure that it will invite scepticism that the fall just so happens to line up conveniently with her pre-existing flight plans.

Thanks Elliot, that’s really helpful.
I’d completely missed the bit about convalescence and the problem being in existence prior to leaving the UK.
You’d imagine that a condition which resulted in an inability to fly for 4 weeks would also result in some form of treatment but the doctors letter doesn’t say that.

Can I join this discussion?
My client has left UK for bereavement purposes. Before leaving UK she suffered from severe MH problems, of which her work coach was aware, although the client has not yet been assessed for LCW.

Whilst abroad, her MH deteriorated and she has been unable to travel back to UC. She has a letter from a doctor, in English, which says that client should not travel etc.

The 2 months exemption for bereavement have expired today. As she did not travel abroad solely in connection with medical treatment, should we expect her claim to be terminated, as well as her husband, joint claimant’s, as he remained abroad with her?

You are, I suppose, saying that the trip had a ‘bereavement phase’ during which your client claims that the absence can be disregarded due to reg 11(1) and (2) and your client is now entering a ‘treatment phase’ where your client might claim a disregard under reg 11(3).

The DWP do not seem to accept that this is a valid analysis because they say that the trip overall cannot have been “solely” in connection with treatment. It is not enough for your client to establish that the ‘treatment phase’ was ‘solely’ in connection with treatment because that does not deal with the whole absence. You would therefore expect that the DWP would end your client’s award because the limits of 11(1) and (2) have been exceeded.

Above, I have called that view into question, because I have suggested that you might be able to read the regs so that the 11(3) disregard could apply in a case where the absence becomes solely about treatment, even if that wasn’t the original purpose. Although that is simply an argument and it does not appear that it is one that DWP agree with.

Ugh, so lengthy challenge, possibly JR, etc.
Thank you Elliot.

An update; MRN received. Claim closed and overpaid from AP starting in February. Overpaid because UC was in payment during the bereavement extension but now DM decided client was not entitled even to that period.

So it appears that client staying abroad for medical treatment is worse off purely because of her poor health.
This is because if she was to return to UK after 2 months allowed for bereavement (mid May, having left mid March), her claim would not have been closed, but because she was too sick to travel home, her UC was withdrawn all the way back to February (AP in which she has left UK).

Legacy benefits ignore a temporary absence for the maximum time allowed as long as the absence was not originally expected to exceed that maximum (even if it does end up exceeding it in practice).

The UC legislation is not clear as to whether that applies for UC, as it is worded differently. However, the author of the ADM at C1988 Example 2 seems to believe that the same applies for UC.

We now received DWP’s response to client’s appeal.
The DM notes that the bereavement absence can be permitted if it is connected with a death of someone for whom claimant was responsible.
See attached anonymised section of the response.

I was under the impression that the “responsible for” part applies to child or QYP. Reg 11 (2) has “or” before “a child or qualifying young person for whom the person was responsible”
DM however knows that it was the claimant’s brother who died, yet still sounds like in order for the bereavement absence to be permitted, the claimant would have to have been responsible for the deceased.

It will not make any difference to the chances of success of this appeal but I was just confused by this “responsibility” bit.
It’s not right what DM says here, don’t you think?

(won’t even comment on the absurdity of further statement that you cannot be responsible for someone who lives in a different country, let’s just ignore that)

No I think that’s completely wrong.

The regs say:

(2) The period of one month in paragraph (1)(b) may be extended by up to a further month if the temporary absence is in connection with the death of—

(a)the person’s partner or a child or qualifying young person for whom the person was responsible; or

(b)a close relative of the person, or of their partner or of a child or qualifying young person for whom the person or their partner was responsible,

and the Secretary of State considers that it would be unreasonable to expect the person to return to Great Britain within the first month.

It seems fairly obvious that the intention is that (a) refers to the claimant’s partner or children/QYPs for whom they are responsible and (b) refers to the close relatives of such persons or of the claimant themselves.

It is relevant that the term “responsible for a child or qualifying young person” is defined in reg 4. The language of reg 11(2)(b) obviously invokes that provision.

It would be very odd indeed to say that someone is “responsible” for their adult brother. If the intended meaning was, against all the odds, as the DM suggests, then it would make more sense to use the word “dependent”.

I’ve now had one of these drop onto my lap as well! Client left the UK 13 July 2022 intending to return 12 August 2022 so right on the limit for a month but, still, within one month. Unfortunately, just before they were due to fly back, they felt ill and so did a Covid test which came back positive (apparently via a lab so they do have some official confirmation that they had Covid) and had their flights rebooked for 31 August 2022. Over a month. Client reported this to UC. Apparently their UC has now been closed (they say they no longer have access to their journal) and they’ve been overpaid from 29 June 2022 to 28 July 2022 (their assessment period I believe).

From reading the above and from a quick glance at ADM it strikes me that any overpayment should surely be from 13 August onwards as they intended to return to the UK within one month but couldn’t due to ill health (so that AP 29 June to 28 July was correctly paid) but they are indeed not entitled to UC from 13 August until they return to the UK as the illness occurred whilst aboard (what a ridiculous rule by the by, have an accident or illness and can’t return home through no fault of your own and we’ll punish you for it) so the exception doesn’t apply.

Is there any exemption or guidance anywhere meaning that Covid can still give a reason for being out of the UK for more than a month or are they sunk in that regard?  Am I right that the DWP have hosed the overpayment period and it should be from 13 August not all the way back to 29 June? Can they just reclaim UC when they arrive home tomorrow even if that is now trickier as the DWP have closed the journal?