Michaela Kuželová v (1) The London Borough of Barnet (2) The Secretary of State for Work & Pensions (HB): [2026] UKUT 272 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Gullick on 16 July 2026.
Read the full decision in .
Judicial Summary
This appeal concerns the Appellant’s entitlement to Housing Benefit between 25 May 2020 and 7 August 2020. The Appellant is a citizen of the Czech Republic and was lawfully present in the United Kingdom as an EU migrant worker. She lived in North London with her son, then aged eight. Their home was rented from a private landlord. The Appellant received Housing Benefit, administered by the London Borough of Barnet, to assist with payment of the rent.
In May 2020, the Appellant’s father became seriously ill. The Appellant and her son travelled to the Czech Republic to visit him. Shortly after they arrived, the Appellant’s father’s condition improved – but the Appellant’s son then became seriously ill, requiring in-patient hospital treatment and a lengthy period of convalescence. The Appellant initially remained in the Czech Republic with her son. She returned to her home in Great Britain in July 2020. Her son stayed with his grandparents and returned much later on.
On 7 August 2020, the London Borough of Barnet made a decision that the Appellant’s entitlement to Housing Benefit had ended when she travelled to the Czech Republic in May 2020, because the length of her absence from Great Britain was likely to exceed the permitted maximum period of four weeks in the Housing Benefit Regulations. It also decided that there had been a recoverable overpayment of Housing Benefit during this period of more than £1,000.
As a result of the local authority’s decision that her entitlement to Housing Benefit had ended when she left to travel to the Czech Republic in May 2020, it was necessary for the Appellant to make a claim for Universal Credit, which had replaced Housing Benefit. She was awarded Universal Credit in September 2020.
The Appellant challenged the lawfulness of the local authority’s decisions of 7 August 2020 in an appeal to the First-tier Tribunal. That appeal failed. The Appellant was granted permission to appeal by the Upper Tribunal. The Secretary of State for Work and Pensions was joined as a Respondent to the appeal to the Upper Tribunal.
The Upper Tribunal finds that the decision of the First-tier Tribunal was made in material error of law. The First-tier Tribunal failed to consider whether the Appellant was entitled to Housing Benefit on 7 August 2020 and so the local authority’s decisions should have been made by way of “closed period supersession” – that is, by the local authority finding that even if there had been a point at which the Appellant’s entitlement to Housing Benefit had ended, it had since been re-established by the date of its decision.
The Upper Tribunal re-makes the decision by allowing the appeal against those parts of the local authority’s decisions of 7 August 2020 which are challenged. The Upper Tribunal finds that:
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Applying the Housing Benefit Regulations, but without regard to any provisions of EU Law, the Appellant’s entitlement to Housing Benefit ceased on 25 May 2020 but resumed on 8 June 2020, as a result of the reason for her absence abroad from this point onwards being her son’s illness. Her entitlement to Housing Benefit did not thereafter cease again prior to the date of the decisions under appeal on 7 August 2020.
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In respect of the Appellant’s entitlement to Housing Benefit for the period between 25 May 2020 and 7 June 2020, the Appellant as an EU migrant worker can rely on her rights under EU Law to equality of treatment with British workers. The Respondents accept that the relevant provisions of the Housing Benefit Regulations have a discriminatory effect on EU migrant workers because, since changes made in 2016, they have provided for different basic maximum permitted periods of absence within Great Britain (13 weeks) and outside Great Britain (4 weeks). The Respondents are therefore required to demonstrate that this accepted discriminatory effect is objectively justified. They have failed to do so. As the period in question falls entirely before the date on which the position under EU Law materially changed following the United Kingdom’s departure from the European Union, then the relevant provisions of the Housing Benefit Regulations must be disapplied in the Appellant’s case in favour of the more generous entitlement that otherwise arises only in respect of permitted periods of absence in Great Britain. Applying those provisions, the Appellant’s entitlement to Housing Benefit did not cease during the relevant period.
The result is that the local authority’s decisions of 7 August 2020 finding no entitlement to Housing Benefit for the period 25 May to 7 August 2020, and finding that there was a recoverable overpayment, are set aside. There was such an entitlement throughout the relevant period, and accordingly no recoverable overpayment in respect of that period.