Temporary absence

Rules on temporary absence apply both to new and ongoing claims. A temporary absence is defined as one which is expected at its beginning to last no more than 52 weeks (Reg 16 (2) (a)). The absence ends when the person returns to the CTA.

A person is absent from the CTA if that person is absent for the whole day from midnight to midnight. A person who is present in the CTA for only part of a day, is present on that day. This is when leaving or returning to UK.

Where an award has been made, a ADP claim should continue to be paid for the first:

• 13 consecutive weeks of any absence for any reason (Reg 16 (1) (a))

• 26 consecutive weeks of any absence caused by travelling abroad to receive medical treatment (Reg 16 (1) (b))

• 26 consecutive weeks of any absence caused by a crisis where the UK Government has issued guidance to leave a country, or arranged an evacuation of British nationals from a country, and it would be unreasonable to expect the individual to return from that country (Reg 16(1)(c))

The same periods, for the same reasons, can also be applied retrospectively when considering whether an applicant satisfies the past presence test.

Absences from the CTA of up to:

• 13 weeks for any reason

• 26 weeks to receive medical treatment

• 26 weeks because of an inability to return due to a crisis where the UK Government has issued guidance to leave a country, or arranged an evacuation of British nationals from a country, and it would be unreasonable to expect the individual to return from that country.

should be counted as presence for these purposes. The absences cannot be consecutive; an absence of 13 weeks for any reason cannot be followed by a medical absence of 26 weeks and ADP can remain in payment.

The 26-week period only applies where the absence is for the medical treatment of the individual for either:

• a disease, or

• bodily or mental disablement

which started before the claimant left the UK (Reg 16 (1) (b) (i))

During the period of temporary absence from UK, the treatment must be either:

• undertaken by

• under the supervision of

a person appropriately qualified to carry out that treatment. ‘Medical treatment’ means medical, surgical or rehabilitative treatment. This includes any course, diet or other regimen (Reg 16 (2) (b))

A claimant who goes abroad for a holiday and falls ill after leaving UK, where that illness does not relate to a pre-existing condition or disability :

• is not absent for the specific purpose of being treated

• would not satisfy the requirement that the treatment was for an incapacity or disablement condition which began before leaving the CTA.

The 26-week absence due to a crisis only applies where Scottish Ministers are satisfied that it would be unreasonable to expect the individual to return, or have returned, to the CTA, and that the individual did not enter that country or territory when His Majesty’s Government’s public information was to advise British nationals to leave that country or territory (Reg 16(1)(c))

For example, it may be unreasonable to expect the individual to return in scenarios where no commercial transport routes are available or where travel would be too dangerous due to a conflict, war or other escalation of violence.