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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)).

Summary

In this decision, the Court of Appeal unanimously dismissed the further appeal of the claimants against the decision in the High Court ([2025] EWHC 1849 (Admin). In the High Court, Mrs Justice Collins Rice DBE CB had rejected the arguments of the claimants, the main one of which was that in the exception to the two-child limit in universal credit (UC) regarding non-consensually conceived (NCC) children, the requirement for the NCC child to have been the claimant’s third or subsequent child was unlawful as a breach of the prohibition of discrimination in Article 14 (read with Article 1 of Protocol 1 or Article 8) of the European Convention on Human Rights.

The further appeal of the claimants to the Court of Appeal argued that:

1. their treatment by the relevant regulations (regulations 24A–24B and Schedule 12 to the Universal Credit Regulations 2013, SI No.376) was not justified and so was discrimination under Article 14;
2. the judge in the High Court erred in failing to conduct a proportionality assessment; and 
3. also erred by trespassing into family law principles on parental responsibility and treating those as relevant to the issue of justification. 

Giving the lead judgment in the Court of Appeal, Lord Justice Lewis dismissed the appeal. The court agreed that it was its role in this case to carry out its own, fresh assessment of proportionality. That included because there was ‘high importance for society’ as the issue concerned ‘the way in which a particularly vulnerable group within society, women who have suffered extreme forms of domestic and sexual abuse, are treated in terms of access to welfare benefits’ (paragraph 35).

Regarding alleged discrimination, there was no doubt that the arguments were within the scope of Article 14. There was doubt as to whether the claimants were in a materially analogous situation to their alleged comparators – ie, to adopters/non-parental carers taking responsibility for a third child (who benefit from an exception), or to parents with two consensually conceived children who then have an NCC third child (who also benefit from an exception). But the court nevertheless assumed that they were, in order to carry out its own proportionality assessment. Regarding adopters/non-parental carers, the exception for them was to avoid discouraging them to assume responsibility for children, was ‘proportionate and justifiable’ and ‘did not call for extension’ to other groups (paragraphs 44–47). Regarding parents with an NCC third child, the important fact here was ‘the state of affairs at the time’ of that conception – ie that the woman had no choice or control (paragraph 48). But for the claimants, having a consensually conceived third child involved ‘an element of choice’ and granting an exception to them ‘would run counter to the aim of fixing a limit on the number of children in respect of whom the child element of universal credit could be claimed’ (paragraph 49). Although differential treatment on grounds of sex certainly requires ‘very weighty reasons’, in these cases the different treatment instead had ‘a differential impact on different groups of women’ (paragraph 50). In conclusion, the way the regulations treated the claimants was proportionate and justified. It followed that arguments (2) and (3) of the claimants were not material. But for completeness it was held that the judge in the High Court had not erred in these ways. She did carry out a proportionality assessment. References in her judgment about the issues being ones of fairness or the social and economic merits of the two-child limit rather than legal ones were just ‘a strand in her reasoning’, and her reference to the law of parental responsibility reflected just ‘one facet of the issues that the judge was considering’ (paragraphs 54–55).

Comment from CPAG

CPAG, who brought the case for the claimants, has applied for permission to appeal to the Supreme Court. Although the two-child limit is no more, it remains relevant in the pre-5 April 2026 context.

Decision in brief

Claimant initially paid rent to a housing association under a shared ownership scheme, and was entitled to housing benefit for that rent – but when she bought the 50 per cent share owned by the housing association with her daughter and son-in-law and the Land Registry entry showed the freehold had been transferred jointly to them, she became an ‘owner’ of the property for the purposes of regulation 12 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, and no longer entitled.

Summary

The claimant provided a fit note in February 2024. The DWP eventually awarded the limited capability for work-related activity (LCWRA) element on the basis that the claimant had notified his health condition with effect from 8 February. The claimant argued that he had notified that earlier, on or around 27 December 2021, in a series of meetings or phone calls with the DWP at which his health and ability to work were discussed. The First-tier Tribunal rejected that, and held that although any declaration of his health condition and limitations ‘would suffice to start the assessment process’, on the facts he had not notified the DWP that he was not fit for work on any of the earlier dates he relied upon. 

In the Upper Tribunal, Judge Ward set the decision aside and remitted the case to a fresh tribunal. The relevant rules about evidence in this context are in the Social Security (Medical Evidence) Regulations 1976. The basic requirement, made in regulation 2(1), is to provide evidence of limited capability for work by way of a ‘fit note’. But that is subject to the possibility of evidencing an initial seven days of incapacity by way of a self-certificate, and also to regulation 2(1A) which provides that where it would be ‘unreasonable’ to require a fit note, ‘such other evidence as may be sufficient’ may be submitted instead. The tribunal had erred in failing properly to consider regulation 2(1A) regarding the earlier dates argued for by the claimant. In the circumstances, the tribunal was required to consider if it was unreasonable to require the claimant to have provided a fit note earlier than he did, and if so, whether the alternative evidence provided (ie, regarding the conversations about his health) was ‘sufficient’ evidence of his limited capability for work. The tribunal had not done that, and that was best done now by a fresh tribunal. 

The judge accepted the argument of the Secretary of State that, regarding self certification under regulation 5, that had to be in writing and so the claimant’s (alleged) oral notification of his condition could not suffice for that purpose. Judge Ward also addressed the claimant’s submission of a backdated fit note, dated 20 May 2024, which stated that he was unfit for work from 6 December 2021 to 9 February 2024. The tribunal concluded that it was in contradiction of the ‘clear’ evidence regarding that period. Given that, the judge did not think the tribunal had dismissed it, as the claimant argued, solely because it was obtained later. How should the fact that it was backdated have been treated? Under section 12(8)(b) of the Social Security Act 1998, the tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made’. Because there is a difference between circumstances and evidence of those circumstances (R(DLA) 2/1 and 3/01 were cited), the judge held that a tribunal:

‘would be entitled to treat a relevantly retrospective fit note given after the date of the DWP’s decision as relevant evidence of the state of a claimant’s health down to the date of the decision’. 

The weight to be given to that evidence would be a matter for the tribunal. But what would be precluded by section 12(8) (b) ‘would be to rely on the fact of the fit note having been issued when it post-dated the DWP’s decision’ – ie, to regard a fit note actually to have been issued at the time the decision was made (paragraph 17).

Comment from CPAG

Regarding backdated fit notes, the decision is authority that they can be evidence of the state of the claimant’s health in the past period covered by the note but, before a First tier Tribunal, cannot constitute retrospective satisfaction of regulation 2(1). But that is not necessarily fatal to the claimant’s case. The tribunal should consider whether regulation 5 or 2(1A) was satisfied instead.

Decision in brief

Claimant’s son was a non dependant that meant she was not entitled to the severe disability premium (SDP) – he moved out and shortly after became entitled to PIP, but she did not report him moving out for five years – claimant’s argument that she was nevertheless entitled to a supersession (and the SDP) effective from the point he moved out rather than when from she eventually reported the change rejected – case fell within regulation 6(2)(a) of the Social Security (Decisions and Appeals) Regulations 1999 (change of circumstances) and not, as contended for by the claimants, regulation 6(2)(e) or (ee) – CPC/2634/2015 approved – no breach (via discrimination) of European Convention of Human Rights.