Law Report: Absence abroad must be limited: Chief Adjudication Officer and another v Ahmed and others - Court of Appeal (Lord Justice Neill, Lord Justice Evans and Lord Justice Peter Gibson), 16 March 1994

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Although a claimant for social security benefit who was abroad and uncertain of his date of return might be 'temporarily absent' from Great Britain and still qualify for receiving benefit, his absence abroad should be for a limited period and he would generally be disqualifed if his absence had become a matter of years rather than months.

The Court of Appeal allowed an appeal by the chief adjudication officer and the Secretary of State for Social Security and interpreted regulation 2(1) of the Social Security (Persons Abroad) Regulations 1975 (SI no 563).

Regulation 2(1) provides: 'A person shall not be disqualified from receiving sickness benefit, invalidity benefit, severe disablement allowance, and unemployability supplement, or maternity allowance by reason of being temporarily absent from Great Britain for any day if . . . (b) the absence is for the specific purpose of being treated for incapacity which commenced before he left Great Britain . . .'

In three cases the issue was whether the claimants were disqualified from receiving social security payments for any period when they were absent from Great Britain or whether they were temporarily absent for the purpose of being treated for their incapacity abroad within regulation 2(1)(b).

W Robert Griffiths QC and David Wolfe (Department of Social Security) for the chief adjudication officer and the Secretary of State; Richard Drabble (Tyndallwoods & Millichip, Birmingham; Child Poverty Action Group) for the claimants.

LORD JUSTICE NEILL, giving the court's judgment, said that the words 'temporarily absent from Great Britain' in regulation 2(1)(b) were considered in R v Social Security Commissioner, Ex p Javad Akbar (1992) COD 245, where the word 'temporarily' was equated with 'not permanently'. Although an absence might be temporary, even though the intended date for return remained uncertain, for the purpose of construing regulation 2(1) it was wrong to treat 'temporary' as being synonomous with 'not permanent'. The words of the regulation 'temporarily absent' were to be applied to the facts of the particular case.

The correct approach was on the following lines. It was necessary to look at the facts at the date of the relevant decision. In some cases the absence would be wholly in the future. In others the claimant would have been away and would not yet have returned. In yet others the claimant might have returned. The burden of proving that he was 'temporarily absent' was on the claimant. He had to establish that he was temporarily absent from Great Britain, had obtained a certificate from the Secretary of State, and the reason for his being 'temporarily absent' was one of the reasons in regulation 2(1)(b) - (d).

The quality of the absence might change with the passage of time. The fact that no date was fixed for the claimants return did not prevent the absence being temporary.

For example, it might be uncertain at the outset whether the treatment was likely to be for a short time or might involve more prolonged and extensive treatment. The intention expressed by the claimant would be relevant although it was not decisive. As time went by it was likely that his plans for the future would have to be more closely scrutinised. It was also to be remembered that, whatever his intention, a claimant might be prevented from returning by circumstances beyond his control.

The period of absence, if any before the date of the decision would be relevant as would the intended or likely period of absence thereafter. The two periods would have to be looked at together.

As the regulations did not provide any definition of 'temporarily absent' and as the decision was one of fact, it would be unwise for the Court of Appeal to attempt to lay down any rules as to what 'temporarily' meant. Much would depend on the facts of the particular case. Nevertheless the word 'temporarily' connoted that, though the date of return might remain uncertain, the absence contemplated was an absence for a limited period only.

Regard had to be had to the fact that under section 113(1) of the Social Security Contributions and Benefits Act 1992 recipients of social security payments were in general disqualified from receiving such payments for any period during which they were absent from Great Britain. The regulation was designed to provide an exception for those in recept of certain types of benefit while they were temporarily abroad and were abroad for one of the prescribed purposes.

The court could not accept that submission that an absence could continue to be temporary provided there was a sufficiently clear prospect of it ending, however long the absence and however distant that prospect might be. It would be difficult for a claimant to establish that he was only temporarily absence with regulation 2(1) once the absence had become a matter of years rather than months.

With regard to regulation 2(1)(b) the claimant must do more than show that he was undergoing treatment in the foreign coiuntry. He might be there for some other reasons, even a temporary one and he might receive treatment while there without that being the 'specific purpose' of his absence from Great Britain. The question whether treatment for his incapacity was the 'specific purpose' of his absence abroad was also a question of fact.