Michaela Kuželová v The London Borough of Barnet & Anor

A Housing Benefit award is not irrevocably ended by a temporary interruption in entitlement before a supersession decision. The decision-maker must assess entitlement throughout the period up to the decision and may make a closed-period supersession.

For events before the United Kingdom’s withdrawal arrangements materially changed, an EU migrant worker may challenge the different temporary-absence limits under EU equality rights. The state must show that an indirectly discriminatory measure is objectively justified and proportionate. Unsupported assumptions and financial savings alone are insufficient. If justification fails, the discriminatory provisions are disapplied to the minimum extent needed to secure equal treatment in the claimant’s case.

The appellant, a Czech citizen and EU migrant worker, received Housing Benefit for her rented home in Great Britain. In May 2020 she travelled to the Czech Republic with her son to visit her seriously ill father. Her son then became seriously ill and required treatment and convalescence, so she remained abroad before returning to Great Britain in July.

The London Borough of Barnet decided that her entitlement had ended under the four-week limit for absence abroad and that she had received a recoverable overpayment. The First-tier Tribunal dismissed her appeal on 19 October 2022. The appellant appealed to the Upper Tribunal, arguing that the council should have considered whether entitlement resumed before its decision and that the different absence limits indirectly discriminated against her as an EU migrant worker. The central questions were whether a closed-period supersession was required and whether the difference in treatment was objectively justified.

1. The appeal was allowed. The First-tier Tribunal made a material error of law by treating the appellant’s departure from Great Britain as having irrevocably ended her Housing Benefit entitlement. It failed to assess entitlement up to the Local Authority’s decision of 7 August 2020.

2. A supersession decision must address the whole period covered by the existing award. It may alter the award only for the periods when the relevant change of circumstances affects entitlement. If entitlement ends temporarily and is re-established before the decision, the decision-maker may make a closed-period supersession. The Upper Tribunal adopted the analysis in Secretary of State for Work & Pensions v SC [2025] UKUT 299 (AAC). It declined to follow the contrary observation in CH/1237/2004 that entitlement, once ended, could not be re-established before a decision on a backdated claim; that observation was obiter and addressed a different procedural situation.

3. Under the Housing Benefit Regulations 2006, the appellant’s absence was initially likely to exceed four weeks, so entitlement ceased on 25 May 2020. From 5 June, her son’s need for medical treatment changed the reason for her absence and engaged the exception for a dependent child undergoing treatment. Entitlement resumed on 8 June. Her later short visits abroad did not end entitlement again, and she was in Great Britain on 7 August. The council’s decision should therefore have been a closed-period supersession.

4. The judge also accepted an independently sufficient alternative ground concerning the overpayment. Under regulation 104(1), the authority must calculate the benefit that would have been payable on the claimant’s correct circumstances and deduct it from any recoverable overpayment. The judge applied the two-stage approach in JM v London Borough of Tower Hamlets [2015] UKUT 460 (AAC). Had the closed-period ground not succeeded, the appeal against the overpayment decision would still have been allowed on this basis.

5. EU law applied to the relevant events and preserved the power to disapply pre-completion domestic legislation in this case. The four-week limit for absence abroad was accepted to have an indirectly discriminatory effect on migrant workers compared with the 13-week limit for absence within Great Britain. The State’s proposed aims were capable of being legitimate, but its unsupported assertions did not establish that the measure was appropriate or no more than necessary. The judge therefore disapplied the relevant provisions to the minimum extent needed, applying the 13-week limit in the appellant’s case.

6. The First-tier Tribunal’s decision was set aside and remade. The challenged decisions on entitlement and the £1,010.30 overpayment were set aside; the Local Authority was to recalculate the benefit payable. The appeal concerning the separate £179.40 overpayment was dismissed as withdrawn. The judgment expressed no view on how EU law applies to events after 7 August 2020.

1. Upper Tribunal (Administrative Appeals Chamber) — Appeal allowed. The First-tier Tribunal decision was set aside and remade; the challenged Local Authority decisions on entitlement and the £1,010.30 overpayment were set aside.
2. First-tier Tribunal (Social Entitlement Chamber) — Tribunal Judge SJ Walker dismissed the appellant’s appeal on 19 October 2022.