Regulation 25 states-

Hospital in-patients
25.—(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as an in-patient in a hospital or similar institution, or which is a day of recovery from that treatment.
(2) For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as an in-patient in a hospital or equivalent under paragraph (1) and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.

Has anyone had any experience of how tribunals interpret this regulation? Our local ESA office are interpreting this as NOT applying to someone who is recovering at home following an operation in hospital. They say it only applies to someone who is in hospital, whether being treated or recovering form that treatment.

I have several cases where I am relying on this regualtion. One is due to be heard in 2 weeks. The DM has sent in a further submission with their interpretation of Reg 25 as above.

It seems clear to me that this applies so someone who is recovering at home. Have I missed something?

I have to say I would read 25(1) as distinguishing between being an in-patient, and not being an in-patient. These days they send you home as soon as the treatment is finished, so very few people get the chance to recuperate in hospital. That's certainly how the commentator in Sweet and Maxwell understands it.

I think the Department is wrong and the regulation has to be read as whole. The phrase “is recovering from treatment as an in-patient in a hospital” should not be read as recovering from treatment WHILE an in-patient in a hospital but should be read as recovering from treatment AFTER HAVING HAD TREATMENT as an in-patient in a hospital. This makes far more sense. Otherwise the discretion given to the Secretary of State by paragraph 2 would be otiose as the claimant would already count as an in patient under paragraph 1.

I have just had my first appeal on this issue.
The judge started from the position the ESA had taken - that the regulation was headed 'Hospital In-Patients'.

He was however pursuaded by my argument (and the commentary in the annotated regs which I pointed out) that it also applied to ex-patients who were still recovering.

He was a full-time judge and appeared to have not had this argument before. I pointed out we had several similar cases waiting to be heard.