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Forum Home  →  Discussion  →  Covid-19: Welfare benefit issues  →  Thread

UC claimant absent from UK in excess of one month, due to covid19 infection

Benny Fitzpatrick
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Welfare Rights Officer, Southway Housing Trust, Manchester

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Client was out of UK between 09/08/2020 and 04/10/2020. Initially this was to be a 2 week trip to see her parents in Norway, but while there, she became unwell and was diagnosed with Covid19. Cl was admitted to hospital in Norway and was not able to return home until 04/10/2020 due to treatment and self-isolation. Cl has since been observing 14 day self-isolation at home. She has letter to say she is now covid-free.

UC has been refused for the assessment periods covered by ther absence, on the grounds of temporary absence exceeding one month. Technically I can’t argue, but seeing as the circumsatnces made it “unreasonable” for her to return , I’m wondering if anyone has any creative ideas for a potential challenge?

Thanks in advance.

Paul_Treloar_AgeUK
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I’ve posted previously about how the Pension Service told us they were aiming to be sympathetic to people in these situations and I’m sure DWP also issued guidance to local authorities to be lenient for HB awards affected, so maybe worth a punt just to see what they say? Sorry but I can’t find the LA guidance note Benny.

Benny Fitzpatrick
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Thanks Paul. However, it’s UC, not HB, I’m dealing with here.

My feeling is that I’m going to have to go for an MR, but seeing as the decision is technically correct, I’m stumped for grounds. I was thinking of arguing that she was “receiving medical treatment”, but the exemption on these grounds stipulates that the treatment must be the initial reason for travelling outside the UK. In this case, the treatment became necessary whilst she was on holiday, so wasn’t the specific reason for travel.

Va1der
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Complain, and ask the SoS to exercise discretion?

I assume your client is far from the only one who has ended up in this situation - might be worth trying to fight it just to put it on the radar, and possibly have it addressed at higher levels.

BC Welfare Rights
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Paul_Treloar_AgeUK - 20 October 2020 03:43 PM

I’ve posted previously about how the Pension Service told us they were aiming to be sympathetic to people in these situations and I’m sure DWP also issued guidance to local authorities to be lenient for HB awards affected, so maybe worth a punt just to see what they say? Sorry but I can’t find the LA guidance note Benny.

It’s here, linked from the rightsnet news story https://www.rightsnet.org.uk/welfare-rights/news/item/dwp-confirms-easement-that-maintains-housing-benefit-entitlement-for-claimants-prevented-from-returning-to-gb-due-to-covid-19-travel-restrictions

Benny Fitzpatrick
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Va1der - 20 October 2020 04:59 PM

Complain, and ask the SoS to exercise discretion?

I assume your client is far from the only one who has ended up in this situation - might be worth trying to fight it just to put it on the radar, and possibly have it addressed at higher levels.

My thoughts exactly. She can’t be the only one, and although technically correct, this decision seems manifestly unfair. I’m just stuck on what approach to take.  So far it’s apply for MR (although I’m not hopeful), and raise the matter with the client’s MP. Any more suggestions will be gratefully considered.

Charles
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I haven’t got anything to add unfortunately, but do you know if your client, upon reclaiming, had her AP reset to start from the date of reclaim? Or did she keep her old AP dates?

The Regs suggest her reclaim should not use her old AP dates, which means she likely lost out a fair bit more than the period she was abroad for. I’m curious to know if this happens in practice though.

Benny Fitzpatrick
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Charles - 21 October 2020 10:11 AM

I haven’t got anything to add unfortunately, but do you know if your client, upon reclaiming, had her AP reset to start from the date of reclaim? Or did she keep her old AP dates?

The Regs suggest her reclaim should not use her old AP dates, which means she likely lost out a fair bit more than the period she was abroad for. I’m curious to know if this happens in practice though.

I’m not sure on that, as I have yet to see the original decision. Due to covid and language difficulties. I will hopefully be seeing it before the end of the week. So far all my information has come from the client and her daughter, by phone.

Charles
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Ok, thank you.

bristol_1
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Hi Benny, can I ask if you got more info about the reclaim and AP issue, or any leniency on the covid travel issue?

My client claimed UC 28/10/20, and went to Pakistan on 13/12/20 with a return ticket booked for 12/01/21. But then she became ill and changed her return flight to 19/01/2021, while waiting for a Covid test result (which was negative so flew home on 19/01).

I’m trying to work out when her UC entitlement ends/applies due to the temp absence, would it be right that:
she gets no UC for AP 28/11-27/12, AND
gets no UC for AP 28/12-27/01, AND
she has to reclaim UC with potentially new AP dates?

She’s been in touch with them constantly but don’t think any one’s mentioned a reclaim to her - her case is with a “special team” apparently (which I’m hoping is providing some leniency around the covid travel issue - I’ve seen the links to HB easements from other Threads here).
She also hasn’t yet been paid for the 1st AP when she was in the UK which she’s chasing up - looks like she’s been messed around with an ID appt that keeps being cancelled and not rearranged - total nightmare.

Chrissum
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Is it possible to argue that as she would have been breaking the law by returning to the UK, it was a legal requirement for her to remain in Norway. She can demonstrate a clear intention to return to the UK by having a return ticket and it was not circumstances but the law that prevented her from returning… Not sure what the laws were in Norway at that time, but if she had to break them just to preserve her UC award, that cannot have been the intention of the lawmakers.
Just a few rambling thoughts on a Tuesday afternoon…
Other than that, the law for UC has a particularly nasty “and” i.e. not only must you demonstrate you intend to return you must also return within that month.
One for the social policy bods or is it worth a legal challenge?

Oops sorry Benny just picked up on the date of your query…

[ Edited: 26 Jan 2021 at 03:38 pm by Chrissum ]
Dan Manville
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Someone’s just asked me this same question; apologies for grave digging, however I’m looking at reg 11(3) UC regs:

11.—(1) A person’s temporary absence from Great Britain is disregarded in determining whether they meet the basic condition to be in Great Britain if—

(a)the person is entitled to universal credit immediately before the beginning of the period of temporary absence; and
(b)either—
(i)the absence is not expected to exceed, and does not exceed, one month, or
(ii)paragraph (3) or (4) applies…

(3) This paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months 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; or

 

bristol_1
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Hiya

I can’t speak for the original post on this thread, but those UC regs won’t apply to my client, as her absence abroad wasn’t ‘solely’ for medical treatment, care or convalescence.

FWIW I did send a a query through our JCP contact and was told:
“it appears that the rules around easements for being stuck abroad under Universal Credit ended and were only in place during the first lockdown”
“In terms of guidance, the guidance that I referred to was for internal use only and not something that I can share. I have looked to for an external source however I cannot find guidance that specifically says that the easements around temporary absences have been lifted. Only the basic eligibility criteria and a few statements that easements are being lifted but not specific to the matter at hand.”

I then submitted an FOI to get said guidance and recently got a reply which was fairly nothing-y:
https://www.whatdotheyknow.com/request/723017/response/1728225/attach/html/3/FOI2021%2007920%20reply.pdf.html

I’m considering whether to take it to the MP and plead special circs for my client as covid restrictions delayed her return to the UK.
As there is a UC complaint in awaiting a response (about a different aspect of her UC claim) I may wait to see if they comment on this issue as part of their response, before referring to MP.

Paul Stockton
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Dan Manville - 22 February 2021 04:13 PM

Someone’s just asked me this same question; apologies for grave digging, however I’m looking at reg 11(3) UC regs:

11.—(1) A person’s temporary absence from Great Britain is disregarded in determining whether they meet the basic condition to be in Great Britain if—

(a)the person is entitled to universal credit immediately before the beginning of the period of temporary absence; and
(b)either—
(i)the absence is not expected to exceed, and does not exceed, one month, or
(ii)paragraph (3) or (4) applies…

(3) This paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months 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; or

 

I’ve been looking at this regulation too, as I have a client who travelled to Italy on 4/1/21 for medical treatment, and stayed with her mother, intending to be back within a month. She went to Italy for the treatment because she has an 18-month old child and no one in UK who could look after him. Her return flight was cancelled and the doctors advised her not to travel anyway, before they assess her on 5/3/21.

UC terminated, as far as I can see because the DM mis-read her explanation for being out of GB. She immediately asked for MR and in a particularly nasty twist DWP are saying that she can’t ask for MR until she is back in GB. Absolute nonsense, as far as I can tell. No doubt a confusion between reconsideration and reclaim. She has appealed but no MRN of course so I have asked for a direction that DWP respond in 7 days and for an expedited hearing.

Her case is that she travelled for medical purposes. But if her case was that she fell ill while abroad for other reasons I would pursue an appeal and shamelessly argue that “the absence” in reg 11(3) refers to absence after a month. A strained construction of the regulation, but one which would do justice, so a tribunal might wear it.

CA Adviser
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Our client was in receipt of irESA with the SDP and flew to Pakistan on 12/2/20 to see her mother who had been injured in a fall. She was due to return to the UK on 25/3/21 and notified ESA of the absence. ESA ended after 28 days on 12/3/21.
Cl was not able to return to the UK until 7/6/21. She tried to reclaim ESA and the reclaim was refused. Cl submitted an MR.
The MR notice states that ‘when a claimant goes abroad, the department treats them as having made a new claim on their return and their entitlement to benefit needs to be established for the claim to continue. You returned on 7/6/20.
Claims to benefit link to each other if there is a gap of less than 12 weeks. This would mean a person’s entitlement to benefit would not need to be re-established. In your case, you went abroad from the 12/2/20, then the 29th day was 12/3/20 so your claim closed and then from this date to 7/6/20 (when you returned) exceeds 12 weeks and so the claim you would have made on your return would not have linked to your previous claim’.
There is also some guff about how she should have somehow read the runes, unlike the rest of the world, and known to get an earlier flight home, or somehow procured another earlier flight after lockdown began.

Surely the mention of the linking rules is a red herring? She would only have been able to reclaim irESA on her return if she returned within a month of the claim closing: she could have reclaimed irESA had she returned on her planned date because she would have been prevented from claiming UC as she had been in receipt irESA with the SDP within the last month and SDP gateway still stood for UC. Had she returned out-with that month, she would have had to claim UC anyway.

Cl will not claim UC and is living on her PIP.

 

EKS_COTTON
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Hi everyone,

In my client’s case, she went to Italy to visit her parents over xmas and had a return flight booked within the month, then UK lockdown rules changed and she has remained stuck there, trying to rebook a flight.  She has managed to do so twice, only to have the flight cancelled by the flight company.  None of the temp absence rules apart from the one month rule apply in her case.

In the meantime, her UC has stopped.  She has received a decision stating that she has exceeded temporary absence.  She has also received an overpayment notice.

This thread has been helpful and have flagged up DWP discretion/complaints and contacting the MP.  Obviously there is the advice about reclaim as soon as she is back and have asked her to check the AP.

But where she can go with the temporary absence decision given that it is legally correct.  She has had a MRN upholding the decision– what are her grounds for appeal?  There is no error in fact or law.  She can’t put in an appeal on the basis that the law should change and/or the DWP should exercise discretion. However, it would seem very wrong to leave this.

Does anyone know of any legal action being taken so appeals like hers could be put in pending a test case?  If there is no test case, can you put in an appeal asking the Tribunal Service to check for any test case?

In solidarity,

EKS

bristol_1
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Hi EKS,

I don’t think your client or mine have a right of appeal as the law around temp absence was never changed. I’m hoping to use the fact that there was some discretion at the start of the pandemic, and the fact that my client’s absence only exceeded one month by 4 days, to ask for discretion rather than attempt a formal appeal. I’m currently waiting for a complaint outcome which deals with a slightly different aspect of her UC claim, before referring on to her MP pleading special circs and asking for the DWP to consider an ex-stat payment as referenced in the FOI reply I linked to above. 

CA Adviser - I agree with you - your client’s original travel plans would have necessitated a new claim to ESAir as the absence exceed the 4 weeks and then her later return meant that the link to SDP Gateway was lost. The reference to linking rules is, as you say, guff :-)

Elliot Kent
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EKS_COTTON - 15 March 2021 03:30 PM

Does anyone know of any legal action being taken so appeals like hers could be put in pending a test case?  If there is no test case, can you put in an appeal asking the Tribunal Service to check for any test case?

You can always speculatively lodge an appeal and hope that some legal deus ex machina arrives which means that the appeal succeeds. I think you would have a hard time justifying the time spent on doing so.

This issue isn’t really amenable to any sort of legal challenge or test case in my view because you would not be asking the courts to strike down some new rule on the basis that it is discriminatory or irrational or otherwise unlawful. Instead you are saying that a relatively benign rule about temporary absences has become problematic because of current circumstances. So you would be arguing something along the lines that it was unlawful of the DWP to fail to introduce some provision to ameliorate that. It’s hard to see how an argument like that could work unless you were able to make some really convincing discrimination case or similar.

If you think it should be a test case, how about speaking to CPAG or Leigh Day?

EKS_COTTON
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Thanks for the feedback all and Eliot yes very well surmised.  I have now asked CPAG - they agreed no route forward.  Have now asked Leigh Day and will feed back once I get a response.

EKS_COTTON
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Hi all

Leigh Day say it’s a no goer.

The client has put in an appeal anyway off her own back.

I have had a look at the appeal papers.

All DWP needed to say is that she was outside of the UK for more than a month and the law says the UC cannot continue as none of the exceptional circumstances apply.

However they have gone for a full out character assassination.

In addition, they have said (without legal reference) ‘where a claimant does not inform UC of their temporary absence abroad until after the event they will not be entitled for the period of absence.’

Is that correct?

EKS