Secretary of State for Work & Pensions v NJ

Lord Justice Cobb : Introduction

1. A contributory Employment and Support Allowance (‘ESA’) is a state benefit which provides financial assistance to individuals under state pension age who have a disability or health condition which limits their ability to work. This form of ESA is not means-tested; entitlement depends upon the claimant’s record of National Insurance contributions.

2. One of the “basic conditions” of entitlement to a contributory ESA is that the recipient is “in Great Britain” ( section 1(3) (d) Welfare Reform Act 2007 ) (‘ WRA 2007 ’). Limited exceptions to this condition are foreshadowed by section 18(4) WRA 2007 (see §8 below). In this respect, regulations provide that short absences abroad of up to four weeks do not affect the recipient’s entitlement to the ESA (regulation 152 of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (‘the 2008 Regulations’). Longer absences may also be permitted for up to 26 weeks, provided that the more exacting conditions of regulation 153 of the 2008 Regulations are met.

3. It is the provisions of regulation 153 of the 2008 Regulations with which we are primarily concerned in this appeal.

4. This appeal is brought by the Secretary of State for Work and Pensions (‘SSWP’) against the decision of the Upper Tribunal (‘UT’) (Upper Tribunal Judge Stout) issued on 5 July 2024. By that decision, the UT dismissed the SSWP’s appeal from a decision of the First-tier Tribunal (Social Security) (‘FTT’) (Judge C.E. Williams) dated 16 September 2022. On that date, the FTT had allowed the appeal of the Respondent (hereafter ‘NJ’) against decisions of the SSWP that she (i.e., NJ) was not entitled to the ESA during lengthy periods when she was absent from Great Britain at her second home in Spain, and that there had accordingly been overpayments of ESA to her which were recoverable.

5. In this appeal, we have been greatly assisted by counsel for their focused and skilled submissions, both orally and in writing. Our special gratitude goes to Mr Hallström who has throughout this legal process represented NJ pro bono , through the Free Representation Unit.

6. Permission to appeal was granted by Holgate LJ on 23 April 2025. He later made an anonymity order pursuant to CPR Rule 39.2(4), CPR Rules 5.4C and 5.4D, CPR PD52C para 33. For the reasons set out below, I would allow this appeal. The statutory and regulatory framework

7. Section 1 of the WRA 2007 establishes the statutory entitlement to ESA for someone who “has limited capability for work” ( section 1(3) (a) WRA 2007), and who is “in Great Britain” ( section 1(3) (d) ibid.). Other conditions of entitlement to this benefit are not relevant for present purposes. An ESA may be either income-based or contributory; the income-based, means-tested, allowance stopped in December 2018 and has been replaced by Universal Credit. In the instant case, we are concerned with the contributory allowance.

8. Section 18(4) of the WRA 2007 provides that: “(4) Except where regulations otherwise provide, a person shall be disqualified for receiving [a contributory allowance] [an employment and support allowance] for any period during which he is: (a) absent from Great Britain…”.

9. The relevant enabling provisions are section 25 and schedule 2 (para.5) of the WRA 2007 , and the regulations referred to for present purposes are the 2008 Regulations. Part 11 (Chapter 3) of the 2008 Regulations deal with absences from Great Britain. Regulation 151 (in the form in force at the material time) provides: “151. Absence from Great Britain (1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary absence from Great Britain only in accordance with this Chapter. (2) A claimant who continues to be entitled to a contributory allowance during a period of temporary absence will not be disqualified for receiving that allowance during that period under section 18(4) of the Act ”.

10. Regulation 152 (ibid.) provides: “152. Short absence A claimant is to continue to be entitled to an employment and support allowance during the first 4 weeks of a temporary absence from Great Britain if - (a) the period of absence is unlikely to exceed 52 weeks; and (b) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance”.

11. Regulation 153 (ibid.) provides: “153. Absence to receive medical treatment (1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence from Great Britain if - (a) the period of absence is unlikely to exceed 52 weeks; (b) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance; (c) the claimant is absent from Great Britain solely - (i) in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant's limited capability for work which commenced before leaving Great Britain; or (ii) because the claimant is accompanying a dependent child in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement; (d) those arrangements relate to treatment - (i) outside Great Britain ; (ii) during the period whilst the claimant is temporarily absent from Great Britain; and (iii) by, or under the supervision of, a person appropriately qualified to carry out that treatment. [ … ] (2) In paragraph (1)(d)(iii), “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment ”. (Emphasis by underlining added)

12. Further relevant definitions to support these regulations are contained in regulation 2 (ibid.), and include the following: ““doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom of whom the Secretary of State may request a medical opinion, a person registered or recognised as such in the country in which the person undertakes medical practice”; ““health care professional” means – (a) a registered medical practitioner; (b) a registered nurse; or (c) an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999 ”; ““medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly”. Brief facts

13. The facts set out below are drawn from the judgment of the FTT. The FTT had heard evidence from NJ and her husband (DJ), and had found both to be “wholly honest and credible witnesses”.

14. NJ is in her early 60s. DJ is a retired army and NHS surgeon; when practising medicine, he specialised in colorectal and gynaecological cancer surgery. He took early retirement in 2012 to care for NJ who was then described by him as being “at crisis point” in relation to her own health. He is no longer licensed to practise medicine.

15. NJ and her husband live in the West Midlands, UK, but they own a second home in Almeria, southern Spain. DJ has owned a holiday home in Spain since 1987 before he and NJ met. The couple have owned this particular home since about 2012.

16. NJ is reported to suffer from a number of medical conditions. Since 2013, she has suffered from Obsessive Compulsive Disorder (‘OCD’); triggers for her symptoms of OCD include water, a fear of flooding and a fear of fire. Over the years, she has received psychiatric support, counselling and other occupational health treatments; she is prescribed medication which is designed to maintain her serotonin levels, which “can” alleviate (per UT judgment) the symptoms of this condition. The condition prevents her from working and therefore (and since 2013) NJ has been in receipt of the ESA.

17. In 2012, while the couple were staying in their Spanish property for about a month, NJ noted “by coincidence” a “marked improvement” in her OCD symptoms. She attributed this to the greater levels of sunshine in Almeria compared with the couple’s home in the UK. NJ and DJ undertook research and found a number of medical articles/papers which appeared to support a link between sunlight and a reduction of OCD symptoms. These papers were later submitted to the FTT. Further cautious support for this link was later provided to the FTT by NJ’s general practitioner, who commented that: “…through rigorous research she has taken (sic.) and her own lived experience, she is very aware that spending time in the sunshine, namely at her home in Spain, improves her mental health considerably. She reports her symptoms are less severe and she is able to undertake day-to-day activities in a more straightforward manner. This seems scientifically plausible and quite reasonable from my point of view .” (Emphasis by underlining added)

18. In relation to NJ’s visits to the couple’s home in Almeria, the FTT found: “When in Almeria [NJ] maximises her opportunity to be in the sunlight, spending time in the garden, walking the dogs, and sitting out . The couple do have friends who live in Almeria, and they try to meet up once per week. Whilst [DJ] does attend to his own chores and jobs around the property, he is never far from [NJ]’s side, and will supervise, for example if she is longer in the bathroom than he might anticipate, he is aware that this may be as a result of water having triggered [NJ]’s OCD, and he will assist in calming her .” (Emphasis by underlining added).

19. In 2018 and 2019 NJ spent lengthy periods in Almeria as follows: Dates in Almeria Total Period disallowed by SSWP for payment of ESA (weeks) 28.4.2018 – 27.7.2018 c.13 weeks 26.5.2018 – 27.7.2018 (c.9) 26.8.2018 – 21.11.2018 12 weeks 22.9.2018 – 21.11.2018 (8) 21.3.2019 – 29.7.2019 18 weeks 19.4.2019 – 28.7.2019 (14) 12.8.2019 – 23.11.2019 c.15 weeks 10.9.2019 – 22.11.2019 (c.11)

20. When the SSWP learned of NJ’s absences from Great Britain in 2018, the payment of ESA was disallowed for all but the first four weeks of each period spent abroad; the first four weeks of NJ’s absence abroad were of course covered by regulation 152 of the 2008 Regulations. This first ‘disallowance’ decision was reached on 8 October 2019. When the SSWP learned of NJ’s absences abroad during 2019, the payment of ESA was disallowed for all but the first four weeks of each stay abroad; the second ‘disallowance’ decision was made on 4 February 2020. In relation to this second period, the SSWP calculated that NJ had received an overpayment of £4,753 and sought to recoup the same.

21. On 12 May 2020, NJ sought mandatory reconsideration of both disallowance decisions; in the letter supporting her request (sent by DJ on her behalf) it was said that “it is unlikely that she will ever be able to work again, in any capacity”. On 5 June 2020, the SSWP upheld both decisions. In doing so, the following reasoning was offered: “Whilst I fully appreciate the benefits of sunlight and ecotherapy upon your health condition, this appears to be more of a therapeutic benefit, rather than actual medical treatment carried out by a person qualified to carry out the said medical treatment. In addition, the first period abroad you report from 28/4/2018 to 28/7/2018 is of course the end of spring and part of the summer period in the UK when it is expected you would be able to experience regular sun exposure. Outdoor activities in nature are also not limited to being abroad and can of course also be carried out in the UK at any time… Whilst I can appreciate that the warmer climate may help your condition, you have provided no evidence that your travel abroad is solely to receive pre-arranged medical treatment.”

22. NJ appealed to the FTT. On 16 September 2020, the FTT allowed NJ’s appeal against both disallowance decisions, and set aside the entitlement and overpayment decisions. The SSWP appealed. On 26 July 2024, the UT dismissed SSWP’s appeal. The FTT’s decision

23. As I have already mentioned, the facts summarised above are as they were found by the FTT. In relation to the key ingredients of regulation 153 of the 2008 Regulations, the FTT reached the following conclusions.

24. First, the FTT considered the requirement that “the claimant is absent from Great Britain solely… in connection with arrangements made for the treatment of the claimant...” (regulation 153(1)(c)(i) of the 2008 Regulations: see §11 above). It found that although NJ would “go to the local town [Almeria] to sit and have a coffee” and would meet friends for dinner about once per week (see again §18 above) “this does not … preclude reliance on the absence being ‘solely’ in connection with arrangements made for medical treatment”. In his reasons for his decision, Judge Williams continued: “I do not read the term ‘solely’ as meaning that treatment is the sole thing you can do when abroad. That would be nonsensical, as no treatment will be for 24 hours per day. Rather, it must surely be read that medical treatment must be the sole reason for the absence . I accept that the sole reason for [NJ] and [DJ] going to Almeria for extended periods of time is in order for her to access sunlight and the unusual climate Almeria offers . The couple do not go on other holidays, and their time spent in Almeria is simple and somewhat uncomfortable. I accept [NJ’s] evidence that this would not be her choice of holiday. Accordingly, on the facts of this case, I accept that the absence is ‘solely’ in connection with arrangements made for treatment.” (Emphasis by underlining added).

25. On the question of whether exposure to sunlight can be said to be “treatment” for OCD in accordance with regulation 2 of the 2008 Regulations, the FTT found that the language of the definition: “…is broad and can include medical, surgical, or rehabilitative treatment (including any course or diet or other regimen). I have sufficient evidence from [DJ], the studies he relies on and the letter from [NJ]’s GP to conclude on the balance of probabilities that [NJ]’s exposure to sunlight does meet the definition of treatment. The symptoms of OCD can be alleviated if serotonin levels are increased, and a way of increasing serotonin levels is exposure to sunlight. [NJ] has for some time been on medication which seeks to maintain her levels of serotonin, and this prescribed treatment further supports the theory regarding the benefit of serotonin. … I find that that it is the specific climate of the area in which they happen to have a home that provides respite from some of [NJ]’s symptoms”. “… I do not see it as my role to conclude whether this treatment is effective. I find that there is sufficient medical support for it to be considered a valid treatment in principle, and [NJ] is supported by her own GP.”

26. In relation specifically to the issue of treatment “under the supervision of a person appropriately qualified to carry out that treatment” (regulation 153(d)(i)-(iii) of the 2008 Regulations), the FTT treated DJ as a “person appropriately qualified”, and explained this as follows: “[DJ] has a medical background, albeit not in mental health, or psychiatry. I cannot accept the [SSWP]’s submission that treatment in this case in the context of regulation 153 must be by a registered psychiatrist…. The regulation does not in fact require any medical qualification... simply because his specialism was not psychiatry does not in my view exclude him from the definition. The regulation also places no requirements for licencing, and accordingly the fact that [DJ] has retired need not exclude him. Further, there is nothing in the regulation that excludes family members from carrying out the role…. I find that [DJ] knows his wife and thus the impact and severity of her condition better than any treating psychiatrist would. Further, as he himself is medically qualified, he has the necessary transferable skillset to be able to conduct research and acquire knowledge in relation to the specific disablement which his wife suffers. I accepted his evidence as to his supervisory role whilst the couple are in Almeria, and applying the specific facts of this case to the regulation, I find that it falls within the wide ambit of regulation 153 as drafted”.

27. In conclusion, Judge Williams added that he was “wholly satisfied” that this is “not a case of a couple simply spending holiday time holidaying in their second home” (emphasis by underlining added). He added that it was fortuitous for NJ that the climate in Almeria had offered her respite from her condition “and for that specific reason they seek to spend extended periods of time there”. The UT’s decision

28. On appeal to the UT, Judge Stout addressed the three key elements of regulation 153 of the 2008 Regulations in the same manner as the FTT. On the issue of whether NJ’s visits to Almeria were “solely in connection with arrangements made for [her] treatment” her judgment reveals that the parties had agreed at the hearing, through counsel, that: i) “Treatment needs to be the only reason for the absence”; ii) “The fact that someone does things other than being treated while away from Great Britain does not mean that they are not absent ‘solely in connection with’ the treatment”; iii) This issue (i.e., whether a claimant’s absence was ‘solely in connection’ with the arrangements made for treatment) had to be assessed objectively: “… the tribunal needs to decide whether, objectively, the claimant is absent solely in connection with the treatment or not.” The Judge added (correctly it seems to me) that the term “solely” does not allow for any “dominant purpose” type of test, adding (again, correctly) that “as soon as there is more than one purpose to the absence, regulation 153 ceases to be satisfied”.

29. In interpreting the phrase “solely in connection with … treatment”, the UT concluded that the FTT had “quite properly” focussed on NJ’s extended periods in Almeria “going beyond ‘normal holiday’ length and in a place that NJ would not choose to go on holiday”. Judge Stout expressly held that that the FTT was: “…right to focus on the claimant’s reasons for extended absences going beyond the initial 4-week period as it is only that extended period that needs to fall within the scope of regulation 153 ”.

30. The SSWP had not specifically argued before the UT that the FTT’s finding that the ‘sole’ purpose for NJ visiting Almeria was perverse (i.e., NJ was living in the couple’s second home), but had nonetheless submitted that “if necessary” the perversity argument would indeed be advanced. In this respect it is notable that Judge Stout acknowledged that “many Tribunals would not have reached the same conclusion” as the FTT had done in this case. She observed that she did not regard the decision as ‘perverse’, but added: “The fact that by staying for extended periods they may also enjoy the opportunity of holidaying or maintaining their second home does not prevent the Tribunal from concluding that the sole purpose of their extended stays was the treatment. Provided a Tribunal is satisfied for adequate reasons... that these were merely incidental benefits ... rather than the purpose of the extended stay , there is nothing wrong in law with the Tribunal reaching the conclusion that this tribunal did in this case.” (Emphasis by underlining added).

31. On the second issue of “arrangements made for the treatment of [NJ]”, the UT concluded that “treatment” in regulation 153 could be considered more broadly than “medical treatment”, and that in any event the term “medical treatment” in regulation 2 of the 2008 Regulations had a “broad definition”. She held that “medical treatment” “can be something that one does to oneself without any direct third party involvement”.

32. The UT appeared to reject the proposition that “treatment” requires the active participation of a third party, particularly as the participation of the third party may simply be to offer “supervision”. However, and in a manner which may be thought to lack internal consistency within the judgment, the UT went on to consider that the phrase “treatment of the claimant”: “… does on its natural and ordinary meaning indicate that there must be something actively being done to the claimant by someone or something other than the claimant themselves”.

33. The UT considered regulation 153(2) in the context of the regulation as a whole and concluded that: “In order to be ‘treatment’ within the meaning of the regulation, the treatment will need to be ‘similar to, or related to’ medical or physiotherapy treatment. Such an interpretation is necessary in my view because if the nature of the treatment is not so limited, then it will not be possible for the person who is providing or supervising it to be ‘appropriately qualified’ to carry out ‘that treatment’ as required by regulation 153(d)(iii).” This led her to conclude that exposure to sunlight could be treatment given that “we create vitamin D from sunlight on our skin and I see no reason why exposure to sunlight cannot in principle constitute a treatment for vitamin D deficiency”. This was, on her finding, at least “similar to, or related to” medical treatment (per regulation 153(2)).

34. On the interpretation of the specific phrase “arrangements for treatment”, the UT concluded that this could “easily” include the “arrangements” for the “ travel to Almeria, living in the property and exposing herself to the sun” (emphasis added), adding: “…there is no requirement that the ‘arrangements for treatment’ should be arrangements that only a qualified medical practitioner (or physiotherapist or similar) could make”.

35. As for the third question, namely DJ’s qualification to carry out or supervise the treatment, the UT reminded itself of the terms of regulation 153(2) (see §11 above). The UT was of the view that it was not necessary for the person responsible for the treatment to be “registered”, as the forms of treatment contemplated can be treatment “by professionals of types for whom there are no registration requirements”. There was no reason why an “appropriately qualified person” could not also be a relative. The UT added that “whether he was appropriately qualified or not was a question of fact for [the FTT] to determine.”

36. In her conclusion, Judge Stout added these remarks: “It does not follow from my conclusion that the Tribunal in this case has not erred in law that everyone whose medical condition may be improved by sunlight can now rely on regulation 153 so as to remain entitled to benefits during lengthy sojourns abroad. It will still be difficult in most cases for a claimant to satisfy all the elements of regulation 153 on the facts. In particular, in most cases it will be difficult for a person to satisfy the “solely” requirement. If they are also going for a holiday or because they choose to live part of the year abroad or if they would go anyway even if treatment were not required or if sunlight in the UK would be as effective in treating the particular case, any one of these factors will normally indicate that the time abroad is not “solely” for the purposes of medical treatment…. Generally speaking, it may be difficult to establish that “supervision” is being provided in respect of a person's exposure to sunlight... It is only the peculiar facts of this case, as they were found to be by this Tribunal, that the Tribunal did not err in law in concluding that [DJ] was an “appropriately qualified” person who had, over the years, being “supervising” [NJ]’s exposure to sunlight in Almeria.” The Grounds of Appeal

37. There are three Grounds of Appeal.

38. By the first ground, it is argued that the UT erred in its construction of regulation 153(1) of the 2008 Regulations specifically: i) For the claimant to be absent from Great Britain “solely in connection with arrangements made for the treatment of the claimant [for a disease or bodily or mental disablement…]” (regulation 153(c)(i)), the UT erroneously interpreted the term “arrangements made for…treatment” to include treatment of NJ by herself through exposure to the sun; ii) The UT further wrongly endorsed the FTT’s application of regulation 153 to refer only to “extended” absence beyond four weeks (regulation 152) rather than any absence; iii) It failed to relate ‘supervision’ to the ‘treatment’ (sunlight) and applied it to the underlying condition (OCD); iv) It erred in concluding that the “person appropriately qualified test” could be met by a family member who was: (a) a retired medical practitioner; and/or (b) who had no particular expertise in relation to the treatment in question.

39. By Ground 2, the SSWP argues that the UT erred in law in upholding the decision of the FTT in circumstances where the statutory test was not capable of being met on the FTT’s factual findings. In particular, the FTTs finding that this was “not a case of a couple simply spending time holidaying in their second home” (underlining added) strongly indicated that at least a part of the couple’s stay in Spain was to enjoy holidaying in their second home. Moreover, the FTT made no finding that DJ supervised NJ’s treatment by administering sunlight in Spain, if (which is denied) that was capable of constituting treatment. The FTT found only that he had researched the benefits of sunlight in relation to OCD, and that he assisted NJ with managing her symptoms of OCD.

40. By Ground 3, it is argued that the FTT failed to draw any or any adequate inferences from the evidence that among the reasons for NJ and her husband to go to Spain were that he (or they) owned a house and holidayed there, and the UT erred in upholding its decision accordingly. In short, the FTT’s conclusions on the facts were perverse. Arguments on appeal

41. Both counsel agreed that it was important to read regulation 153 as a whole; this was necessary, they submitted, in order to give full effect and meaning to its terms. That said, they both accepted the need to analyse the constituent parts of the regulation individually, and inevitably presented competing arguments on the reasoning and conclusion of the FTT and the UT in relation to the interpretation of the phrases under review.

42. Ms Smyth KC contended that the finding that NJ had travelled to Almeria “solely in connection with arrangements made for [her] treatment” was undermined by the FTT judge’s later reference in his judgment to the fact that this was not a case of NJ and DJ “ simply spending holiday time holidaying in their second home”. Ms Smyth contended that the judge appears to have accepted or inferred that ‘holidaying’ was at least in part the reason for the visits to Spain.

43. This error in the UT’s approach, she argued, flowed from the flawed approach of both the FTT and the UT in treating regulation 153 (absence from Great Britain for up to 26 weeks to receive medical treatment) as applying to the period only after the conclusion of the 4 week period of ‘short absence’ (for an unspecified reason) permitted by regulation 152. Although counsel before the UT had both agreed that regulation 153 “only becomes relevant after the regulation 152 exception has been exhausted”, in fact (argued Ms Smyth) the two regulations are dealing with different scenarios and they must be viewed independently of each other. Thus, it was said, the FTT (see §24 above) and the UT (see §29 above) were wrong to focus on the reason why NJ was in Almeria for the period after the four weeks (which are permitted for any or indeed no reason under regulation 152) had elapsed.

44. Ms Smyth further argued that the apparently broad definition of ‘medical treatment’ in regulation 2 of the 2008 Regulations is considerably narrowed down in this context by regulation 153(2). The suggestion that sunlight could be said to be ‘medical treatment’ in regulation 2 in any event fails on two bases: i) It would have to be said to be ‘rehabilitative’ treatment; however, exposure to sunlight does not easily fall (or fall at all) within the suggested (albeit non-exhaustive) examples of “course or diet or other regimen”; ii) Sunlight is not “provided” (it is a natural phenomenon) nor can the provision of sunlight be “supervised”. She further argued that while sunlight may well bring therapeutic benefits for many people, this is not ‘treatment’ as contemplated by regulation 153(c)(i) because it is not, for example, “similar to or related to” medical treatment or physiotherapy (regulation 153(2)). Ms Smyth contended that regulation 153(1)(d)(iii) contemplated that the ‘carrying out’ of treatment signified that the treatment is an ‘active’ rather than a ‘passive’ experience.

45. On the issue of ‘appropriately qualified’, Ms Smyth argued that regulation 153 does not contemplate that the patient treats herself. Moreover, she contended that DJ, as a retired and unlicensed former medical practitioner was not “appropriately qualified” to “provide” (regulation 153(2)) or “supervise” the “treatment”, nor could he as a matter of fact be said to “provide” or “supervise” the provision of sunlight for NJ. Regulation 153(1)(d)(iii) specifically contemplated that the “person appropriately qualified” must be qualified to “carry out that treatment”; that is to say, that the medical qualification of the person ‘providing’ or ‘supervising’ must relate (at least to some degree) to the specific treatment (in this case of OCD) for which the absence abroad had been arranged.

46. She compared the current case with that of SSWP v Slavin [2012] PTSR 692 (‘ Slavin ’), in which it was held by this court that (for the purposes of interpreting ‘medical or other treatment’ in the context of the Social Security (Disability Living Allowance) Regulations 1991, as amended) those who are providing the ‘treatment’ (in Slavin it was actually nursing care) must possess professional qualification and training as nurses. Richards LJ at [56] (with whom the other members of the court agreed) concluded that even though the staff at the registered care home were providing extensive and round the clock care to the claimant, and administered medication to him, they were not professionally qualified and trained as nurses; accordingly the claimant could not be said to be receiving ‘treatment’ in the form of nursing care from them.

47. Ms Smyth further offered as comparables a number of tribunal decisions. She took us to R(S) 10/51 in which the claimant had travelled to France and then Spain in order to take medicinal sulphurous baths under supervision in the belief or expectation that these would cure his fibrositis. This was found to be ‘treatment’. By contrast, we were taken to R(S) 2/69 where the claimant (a physician) had suffered a coronary thrombosis and was advised to go on a cruise in order to obtain vital rest; he was accompanied by his wife who was also a doctor. This cruise did not constitute ‘treatment’; I quote from the headnote: “… a person can only be absent from Great Britain for the purpose of “being treated” if he is absent in order to enlist while absent some kind of medical or surgical skill or service to be administered by some person qualified to supply it”.

48. By Ground 3, Ms Smyth argued that the FTT had reached findings which were ‘perverse’ – an argument which (see §30 above) had not been fully advanced before the UT.

49. In reply, Mr Jackson contended that the UT had been entitled to reach its conclusions, having regard to the facts as found by the FTT, on the proper reading of regulation 153 as a whole, and/or on its constituent parts.

50. Mr Jackson accepted that ‘solely’ meant ‘solely’, and that periods spent abroad cannot have a dual purpose; he relied on the facts as found by the FTT to the effect that the ‘sole’ purpose of NJ’s sojourns in Almeria was indeed ‘treatment’ of her OCD. He disagreed with Ms Smyth’s argument that regulation 152 and regulation 153 were addressing different issues, and that it was legitimate for the FTT and UT to have looked at the ‘extended’ nature of the visits to Almeria beyond the first four weeks.

51. Mr Jackson argued that regulation 153(2) actually widened the definition of ‘treatment’ beyond that contemplated in regulation 2, by including “a form of treatment” which is “similar to” or “related to” “medical treatment” or “physiotherapy”.

52. He argued that this court should avoid the temptation to construe the regulations in the manner contended for by the SSWP just because it may appear to provide NJ, on the “peculiar” facts of this case (see the judgment of the UT at §36 above), with a surprising entitlement to benefit (see Underhill LJ in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 ; [2020] PTSR1872 at [113]). He further relied on the passage from Lord Leggatt’s judgment in Uber BV & Others v Aslam & Others [2021] UKSC 5 (‘ Uber v Aslam ’) which I reproduce in full: “70. The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose. In UBS AG v Revenue and Customs Comrs [2016] UKSC 13 ; [2016] 1 WLR 1005 , paras 61-68, Lord Reed (with whom the other Justices of the Supreme Court agreed) explained how this approach requires the facts to be analysed in the light of the statutory provision being applied so that if, for example, a fact is of no relevance to the application of the statute construed in the light of its purpose, it can be disregarded. Lord Reed cited the pithy statement of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454, para 35: “The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.”

53. Mr Jackson contended that the FTT and the UT were correct in concluding that DJ was “appropriately qualified” to supervise the treatment of his wife. In his oral argument, he suggested that as DJ was a former surgeon with experience and expertise in dealing with forms of cancer (albeit colorectal or gynaecological), he was “appropriately qualified” (per regulation 153(2)) to provide or supervise NJ’s exposure to sunlight, given the risks of melanoma (cancer) associated with excessive exposure to ultraviolet radiation. This argument was not foreshadowed in the written submissions nor (so far as I can tell) was it advanced in the tribunals below. Discussion and Conclusion

54. I do not doubt the significant interference with NJ’s life caused by her condition of OCD; nor do I doubt the benefit which she receives from being in the stronger sunlight while at her second home in southern Spain (Almeria) than at her home in the West Midlands. It is apparent that NJ receives enormous support from her husband, which he explained in his evidence to the FTT. The question for this court, however, is whether the FTT and UT were correct in their conclusion that the lengthy periods in which NJ stayed at the couple’s Almeria home were “solely” for “treatment” for which she was supervised by “a person appropriately qualified to carry out that treatment” of her, namely her husband.

55. I propose to take Grounds 1 and 2 together, focusing – as counsel did in argument – on Ground 1.

56. It is necessary, as counsel submitted, to read regulation 153 as a whole. In that regard, I approach the task (as per Uber v Aslam ) by having regard to the purpose of this regulation and by interpreting its language, so far as possible, in the way which best gives effect to that purpose. The purpose of this regulation, it seems to me, is to facilitate unbroken entitlement to ESA for a time-limited period (i.e., of up to 26 weeks) while the claimant is abroad provided that the claimant is abroad specifically in order for them to receive ‘treatment’ directly related to the claimant's limited capability for work, by or under the supervision of someone who is appropriately qualified to carry it out.

57. Inevitably it has been necessary to drill into the regulations. Focus has inevitably and rightly been drawn in particular to regulation 153(1)(c) and regulation 153(1)(d), and specifically the phrases: i) “ solely… in connection with arrangements made for the treatment of the claimant”; ii) “ treatment …. by, or under the supervision of, a person appropriately qualified to carry out that treatment”; iii) “ ‘ appropriately qualified’ means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment”. I take each in turn. “Solely… in connection with arrangements…”

58. The FTT was correct when it determined that: “medical treatment must be the sole reason for the absence” (see §24 above). Of course, a claimant is likely to engage in incidental activities while they are abroad receiving treatment (eating, sleeping, taking exercise, sight-seeing, for example), but Mr Jackson is right when he argues that in this context ‘solely’ means ‘solely’. Judge Stout correctly observed that the use of ‘solely’ in the 2008 Regulations was a “tightening up” of the wording of the predecessor legislation (Social Security (Persons Abroad) Regulations 1975), and imposed a “stricter” test than ‘absence for a specific purpose’.

59. However, there are three identifiable errors in the UT’s approach to the interpretation of this part of the regulation.

60. First, it seems clear to me, as Ms Smyth has argued, that regulation 152 and regulation 153 operate independently of each other. Counsel before the UT were therefore wrong, in my view, to agree between themselves that regulation 153 only becomes relevant “after the regulation 152 exception has been exhausted” (see §43 above). Judge Stout understandably accepted that agreement, but was regrettably wrong to do so.

61. Under regulation 152, the claimant is not required to provide any reason for their absence from Great Britain for up to four weeks, and in that period they will continue to be entitled to the ESA. The regulation 152 absence abroad could therefore legitimately be for a holiday. By contrast, regulation 153 expressly stipulates that the claimant has a “sole” reason for a lengthier absence (up to 26 weeks) abroad, and that reason must be for “treatment” of a disease or bodily or mental disablement directly related to the claimant's limited capability for work. The wording of regulation 153 is clear: it specifically relates to the “ the first 26 weeks of a temporary absence” (emphasis added). The FTT and the UT were both in error in blending the provisions of regulation 152 and regulation 153, and applying the “solely” requirement in regulation 153 only to the period which “extended” beyond the first four weeks of the (otherwise unspecified) absence from Great Britain (see §24 and §29 above). The word “extended” is not to be found in the regulation either expressly or by implication.

62. Secondly, the FTT and the UT fell into error in interpreting the phrase “arrangements made for the treatment” (regulation 153(1)(c)(i)), as including arrangements to travel to Almeria, and arrangements to live in the couple’s Spanish home (see §34 above). In my judgment, the regulation is clear that the “arrangements” must relate to the treatment of the claimant and not to these other or ancillary purposes. This is, it seems to me, put beyond question by regulation 153(d)(iii) which is specific that the “arrangements” contemplated by the regulation “relate to treatment” which is to be carried out “by, or under the supervision of, a person appropriately qualified to carry out that treatment”. That is to say that the ‘arrangements’ have to be the kind of arrangements which a medical professional might make, not a travel agent.

63. Thirdly, the error in approach of both the FTT and the UT is further illustrated by the finding of the FTT (not corrected by the UT) that this was “not a case of a couple simply spending holiday time holidaying in their second home” (Ground 2). The phraseology of the FTT in this regard suggests that it had assessed, on the evidence, that ‘holidaying’ was at least one reason for the couple spending time in Almeria during the periods under review. This may have related, impermissibly as I have found in §60 above, to the FTT’s assessment of how NJ and DJ spent at least their first four weeks in Almeria.

64. For all of the three reasons set out above, I am satisfied that the FTT and UT were in error in their construction of this part of regulation 153. “Treatment”

65. The heading given to regulation 153 is “Absence to receive medical treatment” (see §11 above). Exposure to sunlight is not, in my judgment, “medical treatment”. Let me explain.

66. Contrary to the conclusion of the FTT and the UT, I am satisfied that ‘treatment’ (in this context) is not something that one does to oneself; there is (as the heading indicates) a need to ‘receive’ it. As it was found in CS 474/50 the phrase “‘being treated’ must… import some activity by someone other than the claimant”. The UT had relied on the phrase “diet or other regimen” (regulation 2) as support for the conclusion that rehabilitative treatment “can be something that one does to oneself without any direct third part involvement”. But that conclusion ignored the requirement that – even if the rehabilitation involves a specific type of diet (or other regimen) – it needs to be provided or supervised by a person appropriately qualified to carry out “that treatment”.

67. Sunshine is a naturally occurring phenomenon which I readily accept, as the SSWP had accepted, may bring therapeutic benefits to certain individuals. While a person may benefit from sunlight and/or enjoy being in sunshine, I do not consider that a person “receives” sunlight (see, again, the heading) in the way that a person “receives” treatment. In this regard, this case is considerably closer on its facts to R(S) 2/69 than to R(S) 10/51 .

68. The context in which “medical treatment” and “treatment” are used in the 2008 Regulations under consideration in this appeal support this conclusion: i) Exposure to sunlight cannot be said to be “medical or surgical” treatment (per regulation 2 of the 2008 Regulations). Mr Jackson accepts this. This leaves only the possibility that it is (as argued by Mr Jackson) to be regarded as “rehabilitative” treatment. Rehabilitation (within the meaning of the 2008 Regulations) must be viewed in the same vein as a “course, diet or other regimen”; these are descriptions of specific remedial programmes. Exposure to sunlight while living a routine daily life abroad is not, in my judgment, a regimen comparable to a ‘course’ or ‘diet’ or equivalent; ii) In any event (picking up the Appellant’s complaint in Ground 2 of the Grounds of Appeal), nothing in the FTT’s specific findings about NJ’s daily life in Almeria (see §18 above) suggests that she was following a ‘course’ or ‘regimen’ of the type contemplated by the regulation during the periods under review. She was enjoying opportunities to spend time in her garden, walk her dogs, and ‘sit out’ in the sun; iii) Exposure to sunlight is not on any view “treatment … by a person”, irrespective of whether or not that person is “appropriately qualified to carry out that treatment” (regulation 153(d)(iii)); iv) “Supervision” (regulation 153(1)(d)(iii)) of someone’s exposure to sunlight cannot constitute “treatment”, because the supervision has to be carried out by a person who would otherwise be “qualified” to “provide” that “medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment” (regulation 153(2)). Sunlight is (as I have discussed in (iii) above) not “provided” by a person however well-qualified, so that person cannot be ‘appropriately qualified’ to ‘supervise’ the treatment. In fairness, when delivering her judgment in the UT, Judge Stout rightly referred to the “limited” way in which the word “treatment” should be interpreted in the regulations because of the need to link it to the person who is providing or supervising it (see §31 above), but it seems that she then failed to apply this to her ultimate conclusion.

69. Moreover, as a matter of fact (again picking up a point in Ground 2), the FTT did not find that DJ ever in fact supervised NJ’s exposure to the sun; the only evidence in the judgment of DJ offering “supervision” is to be found in the example of him apparently intervening “if [NJ] is longer in the bathroom than he might anticipate” (see §18 above). This, of course, had nothing whatsoever to do with exposure to sunlight. “Appropriately qualified”

70. If, contrary to my conclusions above, NJ’s exposure to the sun could be said to be “treatment” for the purposes of the 2008 Regulations, I am satisfied that both the FTT and the UT erred in holding that DJ was “appropriately qualified” to “provide”, “carry out” or “supervise” NJ’s treatment for OCD by exposure to the sun.

71. In this regard, I repeat the points made in §68(iii) and (iv) above.

72. Furthermore, regulation 153(d)(iii) is clear that the person must be “appropriately qualified” to carry out “ that ” treatment (i.e., in this case, treatment for the OCD condition). While I accept that regulation 153 is silent on what “appropriately qualified” means, and that ‘treatment’ does not have to be ‘medical or surgical’, I note that in regulation 2 of the 2008 Regulations the definitions of ‘doctor’ and ‘health care professional’ both contain requirements for registration (see §12 above). While I do not consider that active medical registration would be an absolute requirement to support a finding that a person was “appropriately qualified”, the unassailable facts are that: i) DJ had been a colorectal and gynaecological cancer surgeon; there is no evidence, let alone any finding, that he had any expertise in psychiatry or mental health and/or (materially) in the treatment of OCD; and ii) In any event, DJ had lost his licence to practise medicine several years earlier (2012). These points, taken together, lead me to the conclusion that the FTT and the UT erred in concluding that DJ could be regarded as “appropriately qualified” to carry out or supervise treatment of the OCD condition.

73. This court’s decision in Slavin (which, as I have indicated, concerned a similar term within the Social Security (Disability Living Allowance) legislation: “medical or other treatment”) lends some support to my conclusions in this regard. All three members of this Court in Slavin considered that ‘treatment’ needed to be provided by, or under the supervision of, professionally qualified doctors or nurses. Davis LJ observed at [67]: “… for there to be medical or other treatment provided to the claimant an element – which must be not insignificant – of care provided by, or under the supervision of, professionally qualified doctors or nurses at [the care home] is required.” Pill LJ added at [78] “… to come within the definition [of ‘medical or other treatment’] the nursing must be of a professional character, that is, administered by, or under the direction or supervision of, a qualified doctor, nurse or nurses . … in this case, the absence of evidence of professional involvement in that sense is decisive.” (Emphasis by underlining added).

74. In my judgment, DJ’s medical qualification and previous practising experience in surgery was really of no material consequence in supporting NJ’s claim under regulation 153. Further, there was no evidence (and no finding by the FTT) that DJ played any part, as an “appropriately qualified person”, in the carrying out, provision or supervision of any form of ‘treatment’ of NJ by exposure to the sun while she was, for lengthy periods, staying at their home in Almeria in 2018 and 2019. He could not, and did not, rely on his medical qualifications and experience to claim some special expertise to have undertaken the research to establish a link between sunshine and OCD. In any event: i) This research could have been (and probably was) undertaken in part in the UK; and ii) The FTT found that NJ (who was medically unqualified) had undertaken this research alongside DJ. Conclusion

75. For the reasons set out above, I am satisfied that the FTT and UT erred in law in their interpretation of regulation 153 of the 2008 Regulations and in their application of that regulation to the facts in this case as found.

76. I would accordingly allow the appeal on Grounds 1 and 2. The SSWP was correct to refuse NJ’s claims for ESA during periods of time exceeding four weeks spent abroad and was entitled to seek recoupment of amounts overpaid.

77. This obviates the need for me to address the arguments in relation to Ground 3. Lady Justice Whipple

78. I agree. Lady Justice Elisabeth Laing

79. I also agree.