PC stoppage due to Thai wife and absences abroad - also overpayment of SDP
I’ve just taken an initial call so apologies for any gaps in the information. In a nutshell the client was receiving Pension Credit incl SDP until 23/11/16. He’s now waiting for the appeal hearing date.
His Thai wife (Buddhist marriage) has been visiting the UK on a visitor visa every year since 2012 and stays for 6 months. The client then returns the favour and visits his wife in Thailand for 13 weeks, returns to the UK for X amount of time and then returns to Thailand for another 13 weeks. He was advised by his MP’s office and EASS that his wife does not form part of the household for the SDP so this should be paid whether he is here or in Thailand. Also that he is entitled to receive PC as he receives “care” not convalescence in Thailand from his wife and this is why his PC stopped; he sent a letter from a private doctor to PC in October 2016 stating this “care” visit.
BYW - he had a visit from the Pension Service visiting team in June 2012 and explained the visits to and from his wife and that they happen every year.
I do not have the Sweet & Maxwell books yet so if anyone can include any Regs or caselaw that would be excellent. Apparently EASS alluded to a case involving income support and that a person with a visa in the household was not part of the household for SDP.
A big thanks in advance.
Some initial thoughts - for his claims when abroad, could this be linked to change in temp absence rules from 28 July 2016 by (SI.No.624/2016) which reduced the general rule of 13 weeks absence allowed for any reason - to just 4 weeks. Extension up to 26 weeks is possible but must show undergoing treatment under doctor’s supervision or ‘medically approved convalescence or care as a result of treatment for an illness or physical or mental impairment’. He may not have had to give evidence to fit these rules before if he always kept his absence below 13 weeks so could be why claim has ended….
For wife’s visits, a person subject to immigration control is not treated as in the same household for Pension Credit (Reg 5(1)(h) State Pension Credit Regulations 2002) but may affect SDP according to DMG Chapter 78 - para 78958.
I was just about to find the DMG so thank you! He will be covered by the 13 weeks prior to July 16 which helps. Have asked that the client emails me the decision notices.
Another question - for absences of 26 weeks for convalescence and care - is the “care” defined in law?
There’s no defintion of ‘care’ in the Pension Credit regulations - think the key issue for your client will be convincing the decision maker that care provided is ‘medically approved’ and ‘solely’ the reason for the absence. Here’s the relevent bit from regulation 3….
(3) This paragraph applies where the absence is not expected to exceed 26 weeks and is solely in connection with–
(a) the person undergoing–
(i) treatment for an illness or physical or mental impairment by, or under the supervision of, a qualified practitioner; or
(ii) 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….
Yes, I had hoped there had been some guidance on what the care constituted - hopefully he kept to the 13 weeks prior to July 2016!