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Decision in brief

Under Article 11(2)(e) of Regulation (EC) No.883/2004 (which on the facts continued to apply to the claimant under the EU Withdrawal Agreement), the claimant’s competent state was the UK as his state of residence, and he was therefore not disentitled from carer’s allowance, even though a ‘sickness benefit’, by the Swedish pension – Article 11(2)(e) was not displaced by Articles 24, 25 or 29 of the Regulation – reasoning in SE v SSWP [2024] UKUT 405 (AAC) approved and applied.

Comment from CPAG

On the basic point that for sickness benefits, receipt of a pension from another state does not displace the state of residence as the competent state, it remains that the earlier decision in SE is the relevant determination: see the official guidance in ADM Memo 08/26, and the 'News in brief' item on p2 of the Welfare Rights Bulletin Issue 313 (August 2026).

Summary

The claimant was entitled to pension-age housing benefit. He went abroad on a holiday for over four weeks and did not notify the council. The council held that the claimant had been overpaid and that the overpayment was recoverable from the claimant. The First-tier Tribunal decided that the information provided to the claimant about his duties to report relevant changes of circumstances did not include anything about being abroad for more than four weeks and so the claimant could not have been expected to know he needed to report it, and consequently no overpayment had occurred.

Following the further appeal of the council, Judge Markus KC held that although the tribunal had erred in holding that no overpayment had occurred (this was common ground before the Upper Tribunal), the overpayment was nevertheless not recoverable from the claimant. That was because the overpayment had been caused by an official error (by the council) to which the claimant had not contributed, and he could not reasonably have been expected to have realised that an overpayment was occurring. The official error was the council’s misleading statement of the claimant’s duties to report relevant changes – ie, the failure to notify the claimant that among the changes of circumstance that he must report could include temporary absence from Great Britain (ie, for more than four weeks). The tribunal’s error therefore also included not considering whether the overpayment was recoverable. Under regulation 71 and Schedule 8 paragraph 9 of the relevant regulations (The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, SI No.214)), a local authority was required to notify a claimant of a housing benefit decision, including of his ‘duty to notify any change of circumstances which might affect his entitlement to, or the amount of, housing benefit and (without prejudice to the extent of the duty under regulation 69 (duty to notify changes of circumstances) the kind of change of circumstances which is to be notified…’. Under regulation 81, all housing benefit overpayments are recoverable, except those caused by ‘official error’ to which the claimant did not contribute, and which he could not ‘reasonably have been expected to realise’ was an overpayment.

In this case, on the facts the kind of changes that the council had told the claimant he needed to notify were about things like changes in income and did not include any mention of being absent from Great Britain for over four weeks or any wider reference to temporary absence. Judge Markus KC held that the council’s decision notification amounted to an official error (MB v Christchurch Borough Council [2014] UKUT 201, reported as [2014] AACR 38, with regard to the design of claim forms being a potential source of official error, cited as relevant). Although the council was not required to set out each and every relevant change of circumstances, the content of their statement to the claimant was ‘misleading’, with the examples provided ‘of a wholly different nature to going on holiday’, and no indication that temporary absences could affect entitlement (paragraph 42). Although the council’s website did include temporary absence in a more detailed list of changes of circumstances, the link to that website was in a paragraph about revisions and appeals, not about the claimant’s duty to report relevant changes. The judge considered that the council’s error was (applying R (Sier) v Housing Benefit Review Board of Cambridge City Council [2001] EWCA Civ 1523) the common sense cause of the overpayment, with the claimant having been in no way negligent and that he ‘would have notified the Council’ about his holiday ‘if he had known if would affect his entitlement’ (paragraph 56). The claimant was not in breach of his duty to disclose as ‘he could not reasonably have been expected to know that his holiday would have affected his entitlement to housing benefit’ – indeed, the council had not attempted to challenge the finding of the First-tier Tribunal that he was not in breach of that duty (paragraph 58). The overpayment was therefore not recoverable.

Comment from CPAG

The decision is authority that a council’s information given to the claimant regarding duty to report changes of circumstance can be so deficient as to amount to an official error that causes an overpayment. In that context, the claimant could not have contributed to that error, and it would seem unlikely that the claimant could reasonably be required to have realised that an overpayment was occurring. Inevitably, the facts of the case will be very important; but the principle is clear enough.

Summary

The claimant was entitled to income-related ESA. He left Great Britain to attend a funeral abroad, intending to return within three weeks. However, while abroad he fell seriously ill, was quarantined and then hospitalised, and as a result was not actually able to return until he had been absent for some 21 weeks. The DWP terminated his entitlement as he had been temporarily absent for more than the default four weeks, and the longer (26-week) period allowed regarding medical treatment abroad required the absence to have been solely in connection with that treatment. The First-tier Tribunal allowed the claimant’s appeal on the basis that although the absence had not originally been to receive medical treatment, his absence continued for that reason, and he did return within 26 weeks.

Judge Wikeley allowed the further appeal of the Secretary of State, holding that the relevant rule for the longer 26-week period of temporary absence (at regulation 153 of the Employment and Support Regulations 2008, SI No.794) required that the claimant had left Great Britain at the outset solely for the purpose of receiving medical treatment – not that they had required such treatment due to a medical emergency abroad. A decision that the claimant had ceased to be entitled to ESA after a temporary absence of more than weeks was substituted.

Regulation 153 had been the subject of a detailed analysis by the Court of Appeal in Secretary of State for Work and Pensions v NJ [2026] EWCA Civ 23. That analysis included that regulation 153 expressly stipulated that the claimant had a ‘sole’ reason for the longer temporary absence (ie, for ‘treatment’), and that did not fall to be applied only to a period that ‘extended’ beyond the default allowed period of four weeks. The ‘clear effect’ of that, held Judge Wikeley, was that the requirement was a binding judgment that:

‘at the outset the claimant must have left Great Britain for the purpose of medical treatment’ (paragraph 32).

It was also relevant to consider the decision of Upper Tribunal Judge West in KK v SSWP (UC) [2025] UKUT 259 (AAC). There, it was held that a period of temporary absence abroad could not be split into multiple phases such that for universal credit (UC) a claimant who suffered a medical emergency abroad could have his continued absence from Great Britain under the UC version of the medical treatment rule (at regulation 11(3) of the Universal Credit Regulations 2013, SI No.376). It was again required that the sole reason for the temporary absence (ie, from the outset), was medical treatment. ‘In short,’ said Judge Wikeley, KK was in the event ‘entirely consistent’ with the Court of Appeal’s judgment in NJ (paragraph 30).

Comment from CPAG

Although this case concerns a claimant on income-related ESA at the time, the same reasoning will apply both to new-style ESA and (in the light of KK and Judge Wikeley’s comments) to UC.

Summary

This is the Court of Appeal’s decision on the Secretary of State’s appeal against the decision of Upper Tribunal Judge Stout in SSWP v NJ [2024] UKUT 194 (AAC). In that decision, Judge Stout had held that the claimant, who suffered from obsessive compulsive disorder (OCD) and regularly stayed on holiday with her husband in their property in Spain for a lengthy periods of more than the default allowance four weeks of temporary absence from Great Britain (eg, for a holiday), retained entitlement to old-style contributory employment and support allowance (ESA) while abroad. That was on the basis, per regulation 153 of the Employment and Support Allowance Regulations 2008, SI No.794, that the temporary absence was for less than 26 weeks and was in connection with receiving ‘treatment’ abroad by or under the supervision of an ‘appropriately qualified’ person, with the ‘treatment’ in this case being exposure to therapeutic increased levels of sunlight in Spain. 

The court unanimously upheld the Secretary of State’s appeal and substituted a decision that the claimant was not entitled to ESA during the periods of time exceeding four weeks spent abroad, with the result that recoverable overpayments of ESA had occurred. Giving the lead judgment, Lord Justice Cobb noted that under regulation 153 the absence from Great Britain had from the outset to be ‘solely’ with ‘arrangements made for the treatment of the claimant’ provided ‘by, or under the supervision of’ a person ‘appropriately qualified’ to ‘carry out’ that treatment. On the facts, those requirements were not made out, even though there was no questioning of the therapeutic value of the claimant’s increased exposure to stronger sunlight in Spain. 

Firstly, regulation 153 had to be applied independently of the default allowance of four weeks temporary absence in regulation 152. So, the requirement for the absence to be ‘solely’ in connection with the treatment applied from the start of the absence, and not after the end of the default four weeks – ie, after the claimant was already absent. The arrangements referred to in regulation 153 must relate to the ‘treatment’ of the claimant and not to ‘ancillary’ purposes such as travel to live in the holiday home (paragraphs 61–62). Secondly, exposure to sunlight was not ‘treatment’. Sunshine is a ‘naturally occurring phenomenon’ which, although it may bring therapeutic benefit, was not ‘received’ in the way that a ‘a person “receives” treatment’; and was not ‘treatment...by a person’ irrespective of that person’s qualifications (paragraph 68). Thirdly, although there was no definition of what made a person ‘appropriately qualified’ regarding the treatment, on the facts in this case it was wrong to have considered the claimant’s husband to have been so qualified. There was no evidence that the husband had any expertise in psychiatry or mental health and he had in any case lost his licence to practice medicine several years earlier. 

Comment from CPAG

Although the claimant in this case was getting old-style ESA, there is an identical rule in regulation 90 of the new-style ESA regulations (The Employment and Support Allowance Regulations 2013, SI No.379), and this decision will be authority regarding that rule too. It has also been cited as binding authority in a recent decision of the Upper Tribunal (SSWP v Timothy Barnes-Watts [2026] UKUT 202 (AAC)).