ESA Abroad: Regulation 153 Requires Pre‑Arranged, Professionally Provided/Supervised Treatment; Sunlight “Therapy” and Travel/Living Arrangements Do Not Qualify

1. Introduction

Secretary of State for Work & Pensions v NJ [2026] EWCA Civ 23 is a Court of Appeal decision on the scope of the “medical treatment” exception that allows certain claimants to remain entitled to contributory Employment and Support Allowance (“ESA”) during temporary absences from Great Britain.

The appellant was the Secretary of State for Work and Pensions (“SSWP”). The respondent, NJ, had long-standing OCD and claimed that extended stays at a second home in Almeria, Spain improved her symptoms through increased sunlight exposure. The First-tier Tribunal (“FTT”) and Upper Tribunal (“UT”) accepted that NJ’s periods abroad beyond four weeks fell within regulation 153 of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (“the 2008 Regulations”), on the basis that sunlight exposure was “treatment”, that the travel and living arrangements were “arrangements made for” treatment, and that NJ’s husband (a retired, unlicensed surgeon) was “appropriately qualified” to supervise.

The key issues for the Court of Appeal were:

Whether regulation 152 (short absences up to four weeks) and regulation 153 (absence to receive medical treatment up to 26 weeks) operate independently or sequentially.
What “solely in connection with arrangements made for the treatment” means—especially the meaning of “arrangements”.
Whether “treatment” can include self-administered exposure to sunlight as a therapeutic measure.
What “by, or under the supervision of, a person appropriately qualified to carry out that treatment” requires, and whether a family member who is a retired doctor (with no mental health specialism) can qualify.

The Court of Appeal (with Whipple LJ and Elisabeth Laing LJ agreeing) allowed the SSWP’s appeal and restored the disallowance beyond the first four weeks, with overpayments recoverable.

2. Summary of the Judgment

The Court held that the FTT and UT erred in law in their interpretation and application of regulation 153. In essence:

Regulation 152 and regulation 153 operate independently; regulation 153 applies to “the first 26 weeks” of an absence and is not limited to the period after the first four weeks.
“Arrangements made for the treatment” does not include arrangements for travel or for living in a property abroad; the arrangements must relate to the treatment itself and be of a kind that connects to treatment “by, or under the supervision of” an appropriately qualified person.
In this context, “treatment” is something a claimant must receive, involving activity by someone other than the claimant; sunlight exposure, though potentially therapeutic, is not “medical treatment” (and not a relevant rehabilitative “course, diet or other regimen” on these facts).
Even if sunlight could be “treatment”, NJ’s husband was not “appropriately qualified” to provide/carry out/supervise “that” treatment for OCD, given his lack of mental health/OCD expertise and the fact he was unlicensed; additionally, the FTT did not find that he supervised NJ’s sunlight exposure in any relevant sense.

Accordingly, NJ remained entitled only for the first four weeks of each absence under regulation 152; ESA beyond that was properly disallowed and overpayments could be recovered.

3. Analysis

3.1 Precedents Cited

Uber BV & Others v Aslam & Others [2021] UKSC 5 (‘Uber v Aslam’)

The Court adopted Lord Leggatt’s statement of the modern purposive approach to interpretation: identify the provision’s purpose and read its language to best give effect to that purpose. This framed the Court’s overall method at §56: regulation 153 is designed to preserve ESA entitlement while a claimant is abroad specifically to receive relevant treatment, provided it is provided/supervised by an appropriately qualified person.

UBS AG v Revenue and Customs Comrs [2016] UKSC 13; [2016] 1 WLR 1005

Cited within the excerpt from Uber v Aslam to reinforce purposive interpretation, including analysing facts in the light of the statutory purpose and disregarding irrelevant facts. The Court used this lens to reject attempts to stretch “arrangements made for treatment” to encompass ordinary travel and living arrangements.

Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454

Quoted (via Uber v Aslam) for Ribeiro PJ’s formulation that the ultimate question is whether the statutory provisions, construed purposively, were intended to apply to the transaction “viewed realistically”. The Court implicitly applied this “realism” to reject characterising extended residence at a second home as treatment-related arrangements.

R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778; [2020] PTSR1872

Raised by NJ’s counsel to caution against reading down the regulation because the outcome appears surprising or generous. The Court accepted the general warning (at least as a principle of approach), but found that a proper purposive reading still excluded NJ’s scenario.

SSWP v Slavin [2012] PTSR 692 (‘Slavin’)

This was the Court’s most directly analogous modern authority on “treatment” in social security legislation. Ms Smyth KC relied on it to argue for a professional-qualification element. The Court treated Slavin as supportive (not necessarily determinative on identical wording), emphasising that:

Richards LJ’s reasoning at [56] required professional qualification/training in nursing care for “treatment” to be characterised as such.
Davis LJ at [67] contemplated an element of care by or under supervision of professionally qualified doctors or nurses that must be “not insignificant”.
Pill LJ at [78] considered the “absence of evidence of professional involvement” decisive.

The Court used Slavin to reinforce that “appropriately qualified” supervision is a real constraint, not a formality that can be met by informal care, however devoted.

R(S) 10/51

Used as an example where absence abroad was found to be for “treatment”: sulphurous baths taken “under supervision” with an expectation of curing fibrositis. The Court treated it as illustrating the kind of structured, administered regimen that more readily fits “treatment” as contemplated by the regulations.

R(S) 2/69

Treated as closer to NJ’s facts. A cruise undertaken for “vital rest” did not constitute “treatment”. The Court relied on the headnote’s formulation: a person can only be absent for “being treated” if absent “to enlist while absent some kind of medical or surgical skill or service to be administered by some person qualified to supply it”. This directly supported the Court’s rejection of self-directed sunlight exposure as “treatment”.

CS 474/50

Cited for the proposition that “‘being treated’ must… import some activity by someone other than the claimant”. The Court used this as a conceptual anchor for distinguishing between therapeutic benefit and “treatment” that is received under professional provision/supervision.

3.2 Legal Reasoning

(A) The structure of the scheme: “in Great Britain” with limited regulatory exceptions

The statutory starting point is the basic entitlement condition that the claimant must be “in Great Britain” (Welfare Reform Act 2007, section 1(3)(d)), with disqualification during absence unless regulations provide otherwise (section 18(4)). The 2008 Regulations then create carefully bounded exceptions:

Regulation 152: short absence (first 4 weeks) provided the absence is unlikely to exceed 52 weeks and other entitlement conditions continue.
Regulation 153: absence to receive medical treatment (first 26 weeks), with additional strict requirements including “solely”, “arrangements”, and qualified provision/supervision.

(B) “Solely in connection with arrangements made for the treatment”: three errors identified

The Court accepted the strictness of “solely”: if there is more than one purpose, regulation 153 is not satisfied (§58). However, it found the tribunals fell into legal error in how they approached the condition:

Independence of regulation 152 and 153 (§60–61).
The UT (based on the parties’ agreement) treated regulation 153 as becoming relevant only once the four-week “short absence” period was exhausted and thus evaluated the “solely” requirement only for the “extended” period. The Court rejected this: regulation 153 applies to “the first 26 weeks” of an absence, and contains no “extended” concept. The two regulations are different exceptions with different conditions: a claimant may be abroad for any reason for four weeks (including holiday), but to rely on regulation 153 the claimant’s purpose for being abroad during the qualifying period must meet the strict medical-treatment exception.
Meaning of “arrangements made for the treatment” (§62).
The UT treated “arrangements” as including travel to Almeria, living at the property, and exposing herself to sun. The Court held this was wrong: the arrangements must relate to the treatment itself and are constrained by regulation 153(1)(d)(iii), which links the arrangements to treatment carried out by/supervised by an appropriately qualified person. In effect, “arrangements” are treatment-arrangements, not life-arrangements.
Holidaying inference and incompatibility with “solely” (§63).
The FTT’s statement that this was “not a case of a couple simply spending holiday time holidaying in their second home” was treated by the Court as suggesting that “holidaying” was nevertheless part of the reason for the stays—undermining satisfaction of the “solely” requirement. This also illustrated the risk created by the tribunals’ incorrect “extended period” approach: the first four weeks may permissibly be holiday, but that cannot be blended into a regulation 153 justification.

(C) “Treatment”: must be received; sunlight is not “medical treatment” on these facts

The Court gave several interconnected reasons for rejecting “sunlight exposure” as “treatment” within regulation 153:

The heading and concept of receipt (§65–67). Regulation 153 is headed “Absence to receive medical treatment”. The Court held this implies treatment is something the claimant receives, not something done to oneself; and sunshine is not something received in the relevant sense.
Third-party activity requirement (CS 474/50) (§66). Even if rehabilitation could include “diet or other regimen” (regulation 2), the regulatory structure still requires that the treatment be provided/supervised by an appropriately qualified person—supporting the need for third-party involvement.
Not a “rehabilitative” “course, diet or other regimen” (§68(i)–(ii)). The Court treated “course, diet or other regimen” as describing specific remedial programmes. NJ’s activities (garden, dog-walking, sitting out) did not amount to such a regimen as contemplated by the regulation.
Not capable of being “provided” or “supervised” as treatment (§68(iii)–(iv)). Sunlight is a natural phenomenon; it is not “provided” by a person, and therefore cannot readily be the subject of professional provision/supervision as required by regulation 153(1)(d)(iii) and (2).
Fact-specific deficiency: no finding of supervision of sunlight exposure (§69). The FTT’s example of supervision related to OCD triggers (e.g., time in bathroom), not to administering or supervising sunlight exposure as a treatment.

The Court’s reasoning here is best read as setting a category boundary: the regulation targets organised healthcare-type interventions (or analogous supervised interventions), not therapeutic lifestyle benefits obtained by choosing a beneficial environment.

(D) “Appropriately qualified”: qualification must relate to “that” treatment; DJ did not qualify

The Court held that even if sunlight could be “treatment”, the tribunals erred in treating DJ as “appropriately qualified”:

Textual focus on “that treatment” (§70–72). Regulation 153(1)(d)(iii) requires qualification to carry out “that” treatment—here, treatment for OCD by exposure to sunlight (as characterised by NJ’s case). The Court emphasised that DJ’s background in colorectal and gynaecological cancer surgery did not translate into qualification to treat OCD.
Licensing/registration context (§72). While the Court did not treat active registration as an absolute requirement, it noted the regulatory context: “doctor” and “health care professional” in regulation 2 carry registration concepts. DJ had lost his licence in 2012, reinforcing the conclusion that he could not meet the test.
Slavin as supporting principle (§73). The Court aligned with the general thrust that “treatment” in social security contexts often requires professional involvement of the relevant kind, not merely care by well-meaning but unqualified persons.

Importantly, the Court also rejected (as effectively irrelevant) NJ’s argument that DJ’s medical experience might qualify him to supervise sunlight exposure due to melanoma risk (§53, §74), noting it was not advanced below and, in any event, did not establish qualification to provide/supervise treatment for OCD under regulation 153.

3.3 Impact

(A) Clarification of the relationship between regulation 152 and regulation 153

The decision authoritatively clarifies that regulation 153 is not a “bolt-on extension” after four weeks. Tribunals must not:

treat the first four weeks as “unexamined” and only scrutinise purpose thereafter; or
segment the absence into “holiday first, treatment later” in order to satisfy “solely”.

Regulation 153 applies to “the first 26 weeks” of the temporary absence and must be satisfied on its own terms for the period relied upon.

(B) Tightening of “arrangements” and limiting “treatment” to organised interventions

Claimants will generally need evidence of treatment-specific arrangements (appointments, programmes, supervised therapy, clinical plans, or analogous structured interventions) rather than evidence that a climate/environment is beneficial. “Arrangements” that look like ordinary travel/residence will not suffice.

(C) Rejection of climate/lifestyle benefit claims as “medical treatment”

The Court’s approach makes it difficult to characterise self-directed exposure to a beneficial environment (sunshine, warmth, rest, “ecotherapy”) as “treatment” under regulation 153, even if a GP supports its plausibility and even if symptoms improve. The decision draws a distinction between:

therapeutic benefit (improvement from circumstances), and
treatment (received intervention provided/supervised by appropriately qualified persons).

(D) “Appropriately qualified” is not satisfied by informal supervision and is treatment-specific

The ruling signals that:

qualification is assessed against the specific treatment relied upon (“that treatment”), not general medical experience; and
family care, however extensive, will not readily substitute for professional provision/supervision where the regulation requires it.

(E) Administrative consequences

Practically, the judgment supports the SSWP’s ability to:

disallow ESA for absences beyond four weeks where the regulation 153 conditions are not strictly met; and
pursue recoupment of overpayments where entitlement is not established.

4. Complex Concepts Simplified

Contributory ESA: A non-means-tested benefit based on National Insurance contributions, payable only if statutory conditions (including being “in Great Britain”) are met.
Section 18(4) WRA 2007 disqualification: A person is generally disqualified from contributory ESA while absent from Great Britain, unless regulations create an exception.
Regulation 152 vs regulation 153:
- Regulation 152: allows entitlement to continue for the first 4 weeks of temporary absence without needing a medical justification.
- Regulation 153: allows up to 26 weeks only if the claimant is absent solely for treatment-related reasons and the treatment is by/under supervision of an appropriately qualified person.
“Solely”: Not a “main purpose” test. If there is another purpose (e.g., holidaying, maintaining a second home), the condition fails.
“Arrangements made for the treatment”: Not general travel/residence planning. It means arrangements directly tied to the provision/supervision of the treatment itself.
“Appropriately qualified”: The person must be qualified to provide/supervise the relevant type of treatment. General medical background is not automatically enough, and the qualification must connect to “that treatment”.
Perversity (tribunal appeals): A high threshold challenge arguing that factual findings are irrational. The Court allowed the appeal on legal interpretation grounds, so did not need to determine the perversity ground.

5. Conclusion

Secretary of State for Work & Pensions v NJ sets a clear and restrictive interpretation of regulation 153 of the 2008 Regulations. The Court of Appeal held that:

regulation 152 and regulation 153 are independent exceptions, and regulation 153 is not confined to an “extended period” beyond four weeks;
“arrangements made for the treatment” must be treatment-specific, not ordinary travel or living arrangements;
“treatment” in this context must be something the claimant receives, involving third-party activity and fitting the supervised/provided structure of the regulation; sunlight exposure is not such treatment on these facts; and
“appropriately qualified” requires qualification related to the treatment in question; a retired, unlicensed surgeon without OCD/mental health expertise did not satisfy the test, and in any event supervision of sunlight exposure was not factually found.

The decision is significant for future ESA cases involving time abroad: it confines regulation 153 to organised, supervised treatment scenarios and prevents its expansion to cover climate-based or lifestyle-related therapeutic benefits, even where genuine and medically plausible.