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Decision in brief

Claimant was in India at the time the claim was made in December 2021, but had returned to the UK on 9 April 2022 and was in the UK by the time the claim was decided in July 2022 – claim was refused on basis that claimant was not in the UK when claim was made – but that was wrong as it was instead required to consider the claimant’s circumstances down to the date the claim was decided by the decision maker – claimant therefore satisfied requirement to be in Great Britain in from 9 April 2022 and his entitlement was to be determined from that date

Summary

The claimant was a member of a couple. On 22 August 2019, she went abroad to attend her father-in-law’s funeral. At that time the absence was expected to last for 40 days – ie, less than two months. Her return was delayed until July 2020 (firstly by her brother-in-law confiscating her passport, then by the Covid-19 pandemic). On 24 September 2019, it was decided that she and her husband were no longer entitled to UC – ie, due to absence abroad. The First-tier Tribunal allowed the claimant’s appeal regarding the termination date, holding that (1) the DWP had wrongly relied on regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (‘Decisions and Appeals Regulations’) to terminate the award, as entitlement had not – as required for a regulation 47 termination – first been suspended under regulation 45; and (2) given that the claimant had left Great Britain on 22 August 2019 in connection with the death of a close relative, it was reasonable to allow two months’ temporary absence so that entitlement to UC for absence abroad was only lost from 21 October 2019. The claimant appealed as the tribunal refused the couple’s claim for backdating a new claim made on 8 July 2020.

Judge Jacobs held that the tribunal had not erred in law. The tribunal was correct to hold that regulation 47 of the Decisions and Appeals Regulations did not apply, because there had not been a previous suspension of entitlement. Regarding temporary absence, the relevant rule was at regulation 11 of the Universal Credit Regulations 2013, SI No.376. That provides at subparagraph (1) for entitlement to continue during a temporary absence of up to one month, and at subparagraph (2) for that period to be up to two months in certain circumstances, including in connection with the death of a close relative, where expectation of return to Great Britain within one month is considered unreasonable. The tribunal was correct to decide that two months was the appropriate disregard of temporary absence, given that the claimant was absent in connection with the death of her husband’s father and, given the length of the funeral process, was entitled to allow the maximum extension. Regarding the application of regulation 11, the tribunal was correct to hold (as submitted to the Upper Tribunal by the Secretary of State) that the permitted temporary absence continues until the earlier of (a) the day the absence was expected to exceed one month, or (b) the absence does in fact exceed one month. Entitlement was not to be removed from the moment the absence began – ie, from the moment the claimants left Great Britain. That was consistent with the approach taken by Judge Church in AM v SSWP [2024] UKUT 137 (AAC) (which held that, on supersession, entitlement was only to be removed from the start of the assessment period in which the absence was no longer to be disregarded).

The tribunal was also correct to refuse the claim for backdating. The claimant returned to Great Britain on 7 July 2020 and made a new claim on 8 July. But she (and her husband) could not be entitled on an earlier date than 7 July as she did not satisfy the condition of entitlement of being in Great Britain on an earlier date. Regulation 26 of the Universal Credit Regulations, which provides the grounds on which backdating might be possible, ‘is not a means of bypassing the conditions of entitlement’ (paragraph 27). Backdating of one day to 7 July was not possible as the reason the claim was not made on that day was because the claimant was travelling back to the UK (not because of disability or any other ground on which backdating is possible).

Comment from CPAG

This decision is further authority (with AM v SSWP) that termination for absence abroad only applies from the point in time that disregarded absence under the temporary absence rule no longer applies (ie, where that has applied up until that point), not retrospectively from the point of departure from Great Britain. It is also clear that this is the position of Secretary of State.