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Secretary of State for Work & Pensions v NJ
Factual and Procedural Background
This appeal was brought by the Appellant against the decision of the Upper Tribunal (Judge Stout) dated 5 July 2024, which had dismissed the Appellant's appeal from a First-tier Tribunal (FTT) decision (Judge Williams) dated 16 September 2022. The FTT had allowed the Respondent's appeal against decisions of the Appellant that the Respondent was not entitled to contributory Employment and Support Allowance (ESA) during lengthy periods absent from Great Britain at a second home in The Foreign Town and that there had been recoverable overpayments. Permission to appeal was granted by Judge Holgate on 23 April 2025 and an anonymity order was made. The Court below found in favour of the Respondent; for the reasons given in this opinion the appeal is allowed.
Legal Issues Presented
- Whether regulation 153 of the Employment and Support Allowance Regulations 2008 should be read to allow entitlement to contributory ESA where the claimant's absence from Great Britain is "solely in connection with arrangements made for the treatment" consisting of self-exposure to sunlight at a second home in The Foreign Town.
- Whether the requirement that the treatment be "by, or under the supervision of, a person appropriately qualified to carry out that treatment" can be satisfied where the supervising person is a retired medical practitioner with no demonstrated expertise in the relevant condition.
- Whether the FTT and the Upper Tribunal erred by treating regulation 153 as applying only to the period of absence beyond the initial 4-week exception in regulation 152, and whether their factual findings were perverse in light of evidence that holidaying or ownership of a second home were among reasons for the absence.
Arguments of the Parties
Appellant's Arguments
- The UT erred in construing regulation 153 to include self-administered exposure to sunlight as "treatment" and in treating the regulation as only applying to an extended period beyond the first four weeks.
- Regulation 153 requires the arrangements to relate specifically to treatment provided or supervised by someone appropriately qualified; sunlight is not "provided" by a person and cannot meaningfully be "supervised" as treatment.
- The retired status and lack of relevant psychiatric expertise of the Respondent's husband meant he was not "appropriately qualified" to provide or supervise treatment for the Respondent's OCD.
- The FTT's findings suggested holidaying was at least part of the reason for the absences and were, therefore, perverse or insufficient to support regulation 153 on the facts found.
Respondent's Arguments
- The UT and FTT correctly interpreted regulation 153 as a whole and were entitled to conclude, on the FTT's factual findings, that treatment (sunlight exposure) was the sole purpose of the absence.
- Regulation 153(2) widens "treatment" to include forms "similar to, or related to" medical treatment or physiotherapy, and the exposure to sunlight could fall within that scope.
- The Respondent's husband, as a former surgeon, had transferable skills and practical knowledge sufficient to be "appropriately qualified" to supervise the Respondent's exposure to sunlight.
- The tribunals were entitled to focus on the extended absences and to treat incidental activities as consistent with an absence "solely" for treatment so long as treatment was the sole reason for the absence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| SSWP v Slavin [2012] PTSR 692 | That "medical or other treatment" requires provision by or under the supervision of professionally qualified staff (nurses/doctors). | Relied on to support the proposition that treatment must involve professional qualification/supervision; the court regarded Slavin as lending support to requiring professional involvement. |
| R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778; [2020] PTSR1872 | Quoted for the principle that courts should avoid construing regulations merely because an interpretation yields a surprising entitlement; context and purpose matter. | Referenced to caution against interpreting regulation 153 narrowly or broadly solely to avoid surprising results; used to frame purposive interpretation. |
| Uber BV & Others v Aslam & Others [2021] UKSC 5 | Modern purposive approach to statutory interpretation: consider purpose and apply language to give effect to that purpose. | Adopted as the methodological approach: interpret regulation 153 purposively to give effect to its purpose (time-limited continued entitlement while abroad for treatment). |
| UBS AG v Revenue and Customs Comrs [2016] UKSC 13; [2016] 1 WLR 1005 | Support for purposive interpretation and analysing facts in light of statutory purpose. | Used to reinforce the purposive interpretive method applied to regulation 153. |
| Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454 | Statement that the ultimate question is whether statute, construed purposively, was intended to apply to the transaction viewed realistically. | Quoted to support the purposive, realistic assessment of whether regulation 153 applies to the facts. |
| CS 474/50 | Held that "being treated" imports some activity by someone other than the claimant. | Relied on to support the conclusion that "treatment" requires activity by another person and is not merely self-administered exposure to a natural phenomenon. |
| R(S) 10/51 | Example where travel to take medicinal baths under supervision was treated as "treatment". | Distinguished: used to show that supervised, third-party-administered regimens can be treatment. |
| R(S) 2/69 | Held that a cruise taken for rest (even when advised for medical reasons) did not constitute "treatment" because no medical skill/service was being administered. | Applied by analogy to conclude that sunlight exposure akin to a recreational/resting activity is closer to R(S) 2/69 than to cases of supervised treatment. |
Court's Reasoning and Analysis
The Court applied a purposive approach to regulation 153, construing it in light of its purpose: to permit unbroken entitlement to contributory ESA for up to 26 weeks while abroad provided the absence is specifically to receive treatment directly related to the claimant's limited capability for work and that the treatment is provided or supervised by someone appropriately qualified. The Court analysed three focal elements of regulation 153:
- "Solely in connection with arrangements made for the treatment" — The Court held that regulation 152 (the automatic 4-week exception) and regulation 153 operate independently; regulation 153 requires that treatment be the sole reason for the entire period covered by regulation 153 and not only for any "extended" period beyond four weeks. The tribunals erred by blending the two regulations and by treating arrangements such as travel and living in the second home as satisfying "arrangements made for the treatment". The Court concluded that "arrangements" must be arrangements relating to provision of the treatment itself (i.e., the kind of arrangements a medical professional might make), not ancillary travel or residence arrangements.
- "Treatment" — The Court concluded that exposure to sunlight is not "medical treatment" within the meaning of regulation 153. The heading "Absence to receive medical treatment" and authorities (including CS 474/50 and R(S) 2/69) support the view that treatment imports activity by someone other than the claimant (i.e., receiving something), and that rehabilitative "courses or diets or other regimens" denote specific remedial programmes rather than routine lifestyle exposure to natural phenomena. The Court found that the factual findings (gardening, walking dogs, sitting out) did not show that the Respondent was following a regimen of the type contemplated by the regulation.
- "Appropriately qualified" to provide or supervise the treatment — Even if sunlight exposure could be treated as "treatment," the Court held the tribunals erred in finding that the Respondent's husband was "appropriately qualified" to provide or supervise treatment for the Respondent's OCD. The husband was a retired surgeon with no evidence of psychiatric expertise and had lost his licence to practise; the tribunals had not found that he provided or supervised any sun-exposure regimen. The Court drew support from Slavin, which emphasised professional character and supervision in the provision of treatment.
For these reasons, the Court found errors in law in the FTT's and UT's construction of regulation 153 and their application to the facts as found.
Holding and Implications
APPEAL ALLOWED
Holding: The Court allowed the Appellant's appeal on Grounds 1 and 2 and concluded that the Appellant was correct to refuse entitlement to contributory ESA for periods abroad exceeding four weeks and was entitled to seek recoupment of overpayments.
Implications: The direct effect is that the Respondent's claims for ESA for the periods in question are not sustainable and overpayments may be reclaimed by the Appellant. The Court emphasised that regulation 153 must be read purposively and narrowly: treatment must be received (not merely self-administered exposure to a natural phenomenon), arrangements must relate to the provision of that treatment, and supervision must be by a person appropriately qualified for that specific treatment. The opinion noted that its conclusions do not mean every case of benefit from sunlight will fall outside regulation 153, but that satisfying all elements of regulation 153 will be difficult in most cases; no broader novel precedent beyond these interpretative conclusions was asserted.
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