Success for Osbornes Client in Housing Benefit Discrimination Appeal
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William Ford
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Our client, Michaela Kuzelova, has recently been successful in her appeal before the Upper Tribunal (Administrative Appeals Chamber) concerning her entitlement to Housing Benefit. Upper Tribunal Judge Gullick KC found that relevant provisions of the Housing Benefit Regulations 2006 were unlawfully discriminatory.
In summary
- The rule: A Housing Benefit claimant can generally be absent from home for up to 13 weeks within Great Britain, but only 4 weeks (generally) if they are abroad.
- The question: Did the 4-week limit discriminate unlawfully against migrant EU workers?
- The result: Yes. The Upper Tribunal found the indirect discrimination was not justified. Ms Kuzelova succeeded on all three grounds of appeal.
- What it means for Ms Kuzelova: She is entitled to Housing Benefit from the point she left the UK in May 2020, and the decision creating an overpayment was overturned.
- Wider impact: The ruling did not directly address the point, but it could have implications for similar rules under Universal Credit.
- Who acted: The case was conducted by William Ford, a partner and Head of Osbornes’ Housing and Social Care Team.
What the Housing Benefit rules say about absences
The general position under Housing Benefit is that a claimant is permitted to be absent from their home for up to 13 weeks for any reason, whilst the absence is within Great Britain.
If the claimant is absent from their home abroad, the permitted period is (generally) only 4 weeks. The main issue in this appeal was whether this provision discriminated unlawfully against migrant EU workers.
Background to the case
Leaving the UK after her father’s stroke
Ms Kuzelova is a Czech national who moved to the UK in 2009. She has lived and worked in the UK for many years. She has one child, who was born in the UK in 2012.
At the beginning of the Covid 19 lockdown in March 2020, Ms Kuzelova was forced to stop work and claim Jobseeker’s Allowance. Her employment as a hairdresser was not possible due to the pandemic restrictions. She was also receiving Housing Benefit at this time, to help meet the housing costs of her privately rented accommodation.
In May 2020 Ms Kuzelova’s father, who lives in the Czech Republic, suffered a stroke. She had to leave the UK urgently with her son to travel to the Czech Republic to see him.
She did not know exactly how long she would be absent for when she left. Her concern at the time was primarily for her father’s health.
Her son’s illness
After around 2 weeks in the Czech Republic, her father’s health had stabilised. Then Ms Kuzelova’s son, who was 8 years old at the time, became seriously ill and needed hospitalisation in early June 2020.
Doctors advised that surgery was required and that it was not safe for her son to travel back to the UK until he had had the surgery. This delayed Ms Kuzelova’s return.
Her son had surgery in early July 2020. Ms Kuzelova arranged to return to the UK later in July 2020, leaving her son with his grandparents in the Czech Republic to recuperate.
The Housing Benefit decision and its consequences
Ms Kuzelova was anxious to return to the UK to sort out issues to do with her finances. She had notified her local authority, Barnet Council (“the Council”), of her absence, and her Housing Benefit was suspended.
On 7 August 2020, the Council decided that Ms Kuzelova was not entitled to Housing Benefit from 25 May 2020. It also decided that she had been overpaid Housing Benefit of over £1000.
Ms Kuzelova tried, without success, to get her Housing Benefit reinstated. The Council then advised her to claim Universal Credit, which she did in September 2020. She also filed an appeal with the First Tier Tribunal in September 2020.
By this time she had built up significant rent arrears. In December 2020 she and her son were made homeless from their private sector accommodation.
The appeal to the First Tier Tribunal
Ms Kuzelova was unrepresented in the appeal before the First Tier Tribunal, which took place on 19 September 2022. Legal aid is not available in welfare benefits cases until a case reaches the Upper Tribunal.
The First Tier Tribunal dismissed her appeal. It found that when she left the UK she had not known how long she would be away and could not say her absence was unlikely to exceed 4 weeks. It held that the Council had therefore been correct to decide that her entitlement to Housing Benefit ended in May 2020.
The First Tier Tribunal noted that the Housing Benefit rules do permit a longer absence abroad (26 weeks) where a dependent child needs medical assistance. However, it interpreted the rules as preventing her from relying on this provision, because her child’s ill health was not an issue when she first left the UK.
The appeal to the Upper Tribunal
Representation
Ms Kuzelova submitted an appeal to the Upper Tribunal herself. She was then referred to the Free Representation Unit (“FRU”), where she received help from Daniel Hallström (now a barrister at Old Square Chambers).
Osbornes Law and Simon Cox of Doughty Street Chambers were later instructed by Ms Kuzelova to assist with the appeal, along with Mr Hallström.
The first ground: EU law discrimination
EU law was still in force when the decisions under appeal were made, and it remained so up to 31 December 2020.
At a hearing on permission to appeal in January 2024, a ground of appeal was advanced that regulation 7(13D) of the Housing Benefit Regulations 2006 was indirectly discriminatory in its application to migrant workers who were EU nationals, such as Ms Kuzelova. It was argued that the regulation was intrinsically more liable to affect migrant workers than workers who were UK citizens, and would place them at a particular disadvantage.
Permission to appeal was granted and the appeal went ahead. Because the lawfulness of the Housing Benefit Regulations themselves was being challenged, the Secretary of State for Work and Pensions (“SSWP”) was joined as a party. Both the Council and the SSWP opposed the appeal.
The two further grounds
Two further grounds of appeal were advanced on behalf of Ms Kuzelova:
- Underlying entitlement. The First Tier Tribunal had failed to consider her underlying entitlement to Housing Benefit from 5 June 2020, when her son became seriously ill while they were in the Czech Republic.
- Closed period supersession. The Council should have carried out what is known as a “closed period supersession”.
What is a closed period supersession?
Once an award of benefit has been made, it creates an indefinite award of that benefit. A decision can be superseded (replaced) where there is a change of circumstances.
When looking at a period of entitlement, the decision-maker must identify whether there are periods within that time where the claimant meets the entitlement conditions, as well as periods where they do not. This can result in periods of non-entitlement followed by periods where the conditions are met again.
In that situation, the decision-maker should disallow the benefit for the period where entitlement has been lost. The award then continues again on an indefinite basis from the point that entitlement resumes.
This last ground covered the period from when Ms Kuzelova’s son became ill. Suppose the domestic legislation meant she was not entitled to Housing Benefit from the point she left the UK in May 2020, and the EU law ground failed. In that event, Ms Kuzelova argued that her entitlement was reinstated on 5 June 2020, when her son became ill and was hospitalised, relying on regulation 7(16) of the Housing Benefit Regulations.
This would mean that when the Council made its decision on 7 August 2020, it should only have found her disentitled from when she left the UK in May 2020 up to the point her son was taken ill in June 2020.
Timetable
The case was heard over 3 days in June and September 2025. Judgment was handed down in July 2026.
The Upper Tribunal’s judgment
The appeal succeeded on all grounds.
The EU law ground
The Upper Tribunal found that Ms Kuzelova was a worker for the purposes of EU law and that she fell within the scope of the Free Movement of Workers Regulation 492/2011. It was agreed that EU law was in effect when the decisions in this case were made and therefore had to be applied.
The Upper Tribunal noted that the EU (Withdrawal) Act 2018 ensured that any EU rights in force on 31 December 2020 continued to apply after that date, further to the Withdrawal Agreement. It also noted that the supremacy of EU law was ended from 1 January 2024 by the Retained EU Law Act 2023. However, EU nationals can still benefit from the provisions of the Withdrawal Agreement, which has retained EU law into domestic legislation.
This meant the Upper Tribunal could disapply any provision of the Housing Benefit Regulations 2006 that was contrary to EU law, because the decision making had taken place before 1 January 2024, at a time when EU law was still in force.
The parties agreed that the Upper Tribunal did not have the power to make a referral to the Court of Justice of the EU. That had been a remedy available when the UK was still part of the EU.
Was the discrimination justified?
The SSWP accepted that the four-week maximum period of temporary absence from the home, which applies to absences outside Great Britain, was likely to affect a substantially higher proportion of migrant workers than national workers.
The key issue was therefore whether this indirect discrimination against EU migrant workers was capable of justification. Upper Tribunal Judge Gullick KC found that it was not justified.
The SSWP had said the measure was justified for the following reasons:
- There is a difference between the needs of those temporarily absent within the UK and those temporarily absent abroad, due to differences in living standards in different EU countries. Housing Benefit was linked to the socio-economic conditions in the UK.
- The aim of the longer 13-week period of permitted absence in the UK was to encourage claimants to look for work outside their local area, such as seasonal work.
- Those remaining in the UK would be more likely to be contributing to society than those temporarily abroad.
- Financial considerations.
- Fairness, in terms of the nature of the ongoing link between the recipient of the benefit and the community that provides the benefit.
None of these factors was considered sufficient to justify the discriminatory impact on migrant workers.
Political decision making
The SSWP asserted that the decision making had been at a political level and should therefore be given more deference. The Upper Tribunal did not accept this.
The mere fact that decisions had been taken by Ministers, rather than officials, did not elevate the arguments relied on into the dimension of “moral or political” justification.
The absence of evidence
The Upper Tribunal found no evidence from the SSWP on either the connection between the relevant provision and the legitimate aim, or the proportionality of limiting the permitted absence abroad to four weeks. In particular:
- There was no evidence that a longer period of permitted absence abroad would reduce migrant workers’ connection to the UK, or reduce their contribution to UK society.
- A claimant would still be liable for their rent and other costs in the UK during any temporary absence.
- To get Housing Benefit in the first place, a claimant has to pass the habitual residence test, which demonstrates a sufficient link to the UK. The SSWP provided no evidence that absences of more than 4 weeks would result in the loss of such links.
- There was no evidence of any different level of need depending on whether a claimant’s absence was in the UK or abroad.
- There was no evidence that the measure created any greater administrative efficiency in the UK welfare benefits system.
- There was no evidence that the measure was necessary to let claimants seek work away from their place of residence, such as seasonal work within the UK.
- There was no evidence of any financial savings achieved as a result of the measure.
The judge’s conclusion
The Upper Tribunal concluded as follows at paragraph 231 of the judgment:
“When looked at overall, the SSWP’s justification arguments amount, in substance, to a series of assumptions and assertions which are not supported by evidence in circumstances where that might be expected. They do not, in my judgment, come close to justifying the discriminatory effect of this measure on EU migrant workers such as the Appellant or demonstrating that the maximum period of four weeks’ temporary absence abroad is no more than necessary to achieve the aims relied on – rather than, for example, the eight-week period that was proposed as an alternative by the Social Security Advisory Committee in 2016 to “capture the hardest cases that are likely to be impacted by these proposals”.”
The closed supersession and underlying entitlement grounds
Ms Kuzelova was also successful on the “closed supersession” ground and on the ground relating to underlying entitlement to Housing Benefit.
The Upper Tribunal found that when Ms Kuzelova left the UK in May 2020, it could not be said that her absence was unlikely to exceed 4 weeks, as she did not know how long she would need to be with her father.
That position changed when her son was taken ill, as did the reason for her absence. She had to stay with her son because he was not well enough to travel and he required surgery.
The Upper Tribunal found that from the point her reason for absence became her son’s health, her absence was unlikely to exceed 26 weeks. The Council should therefore have found her entitled to Housing Benefit again from that point, applying the closed supersession rules.
The First Tier Tribunal had erred in finding that Ms Kuzelova could not rely on this change of circumstances merely because those had not been the circumstances when she first left the UK. She was also found to have an underlying entitlement to Housing Benefit from 5 June 2020 onwards.
The outcome
Given her success on all grounds, Ms Kuzelova was found to be entitled to Housing Benefit from the point she left the UK in May 2020. The decision creating an overpayment of Housing Benefit was overturned.
What the judgment means
Ms Kuzelova should now be entitled to be paid Housing Benefit from when her claim was stopped up to when she claimed Universal Credit in September 2020.
The ruling of the Upper Tribunal did not directly address this issue, but it could have implications for similar rules under the Universal Credit system. These rules are similar to the Housing Benefit provisions. They state that claimants will lose entitlement to Universal Credit if they are absent from the UK for more than 1 month, whereas absences of up to 6 months within the UK are permitted.
The impact on Ms Kuzelova
The Housing Benefit rules in this case had very severe implications for Ms Kuzelova. She incurred significant medical bills over her son’s treatment in the Czech Republic.
She was going through an incredibly stressful period of her life and dealing with multiple family emergencies. Instead of being a safety net, the UK’s social security system actively made the situation worse. This ultimately resulted in Ms Kuzelova getting into debt and losing her home.
Nothing can undo the impact that the decision making had on her. It is, however, of considerable relief that justice has now finally been achieved and that Ms Kuzelova should now finally receive the Housing Benefit she was entitled to receive.
This case was conducted by William Ford, a partner and Head of Osbornes’ Housing and Social Care Team.
How we can help
Osbornes would be interested to hear from anyone who finds themselves in a situation similar to the facts described in this case, or anyone affected by the Universal Credit rules on absences from the UK. Please get in contact with us to see if we can assist with your case.
Call us on 020 7485 8811 or fill in the contact form below.
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The social housing department always go the extra mile.
The social housing team has a strong track record in representing tenants in claims against local authorities and housing associations, with particular expertise in complex disrepair and possession cases.
The social housing department provides an excellent service and is able to react quickly in critical situations.
Thanks for all your support during this very difficult time for my family.
William Ford receives effusive praise for his dedication and commitment to social housing. Interviewees highlight his technical understanding and background in housing law, and describe him as highly impressive."
The team understand vulnerable clients and young people, and on the front line they are prompt and efficient.
Edward Taylor undertook my case from an almost unwinnable position. From our first meeting, Edward's enthusiasm was apparent. He was determined, diligent and most professional when dealing with my case, keeping me informed at every stage. I wholeheartedly thank Edward for his endeavours and would not hesitate in recommending him and Osbornes Solicitors to others.
Osbornes Solicitors give us the confidence and strength to continue and input the belief that the case would turn in our favour … What was most important was the transparency in communication that Osbornes provided.
Osbornes Solicitors are the pinnacle of professionalism and have gone beyond to assist with this case … I felt that I wasn't only dealing with just one dedicated solicitor but I had a good knowledgeable team behind me at all times.
I have been extremely impressed with the level of patience and guidance provided in the case … I would like to thank you for your sympathetic approach and understanding towards my mother’s case and I would strongly recommend Osbornes Solicitors to anybody.
'First-class lawyer' William Ford is 'completely dedicated to making a positive difference', and is acting in cases challenging the 'bedroom tax'.
Osbornes is commended for its 'rare level of commitment'.
William acts on possession, disrepair and homelessness cases, and has particular expertise in the protection of tenancy deposits under the Housing Act 2004
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