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The law on housing eligibility

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The main law on eligibility is contained in the Housing Act 1996, which allows the UK government to introduce regulations about eligibility for allocations and for homelessness services in England.  In Wales, although the Welsh Government is now responsible for housing legislation, the Housing Act 1996 continues to be in force, along with the Welsh regulations, until the Welsh Government passes its proposed new Housing Bill.

Rules about who can actually apply for a housing allocation in England now vary between local authority areas, because in June 2012 the Localism Act introduced changes to the Housing Act 1996 which enable councils to set their own local rules about who can apply to be on a housing register or waiting list.  However, many councils may not make specific local rules, or may choose to make changes in the future.  Any changes in local rules cannot discriminate directly or indirectly against particular nationalities or ethnic groups (for more on this see the page on what is discrimination?)

The new rules will not affect homelessness assistance and do not apply to Wales.

English regulations

In England the current regulations are the Allocation of Housing and Homelessness (Eligibility) Regulations 2006. These regulations have subsequently been amended to include people with humanitarian protection, authorised Croatian workers, UK nationals who arrived via the special programme to bring vulnerable UK citizens from Zimbabwe and to exclude people with a European right to reside as the parent/s of a British child (the ‘Ruiz Zambrano’ right to reside).

Regulations 3 and 4 set out who is eligible for an allocation of housing by a local authority (i.e. by obtaining a rented home through the local council or by a nomination for a housing association tenancy).

Regulations 5 and 6 cover the rules affecting people applying as homeless to local councils.

Regulation 3

Regulation 3 sets out the classes of people subject to immigration control who are entitled to go on the housing register:

  • Those granted refugee status (Class A).
  • Those granted exceptional leave to remain which is not subject to restrictions on recourse to public funds (Class B).
  • Those with settled status (Class C) (indefinite leave to remain, residence), except:
    • those who do not pass the habitual residence test
    • those who arrived as sponsored immigrants subject to an undertaking and the undertaking or the arrival was less than five years ago unless the sponsor has died (in which case they have the same rights as other settled people).
  • A person who has humanitarian protection granted under the Immigration Rules (Class D).

Regulation 4(1)

Regulation 4(1) sets out applicants that are ineligible for a housing allocation even though they are not subject to immigration control:

  • Those who are not habitually resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland.
  • Those whose only right to reside in the UK is derived from their status as a jobseeker or the family member of a jobseeker.
  • Since 8 November 2012, those whose only right to reside is the initial right to reside for a period not exceeding three months under Regulation 13 of the EEA regulations.
  • Those whose only right to reside is as the parent of a UK citizen child who has no other rights to reside in the UK.  This is given to the sole carer/s of a UK citizen child who would otherwise have to leave the UK and is granted under regulation 15A(4A) of the EEA regulations as amended on 8 November 2012.

So this part of the regulations applies the habitual residence test to all (but some EEA nationals are then exempted from it by regulation 4(2) below) and makes ineligible those EEA nationals whose only right to reside is: 

  • as a jobseeker (i.e. looking for work, having never worked in the UK) or is
  • the three-month right to reside granted to any EEA national on arrival or
  • as the parent of a UK citizen child under regulation 15A(4A) of the EEA regulations (but those who applied before this regulation took effect on 8 November 2012 are eligible).

Regulation 4(2)

Regulation 4(2) sets out exceptions to Regulation 4(1), so that the following categories of people are eligible for an allocation of housing without having to pass the habitual residence test:

  • EEA workers.
  • EEA self-employed persons.
  • Workers who are from Croatia and are either working under the authorisation scheme or exempted from it.
  • A family member of one of the above groups.
  • A person who has a permanent right to reside in the UK because they are:
    • An EEA worker or a self-employed person who has ceased economic activity. This will arise where someone has reached retirement age or (for workers only) taken early retirement and they have lived in the UK continuously for more than three years prior to termination and they were economically active for the 12 months leading up to the termination.
    • An EEA worker or self-employed person who has stopped work as a result of permanent incapacity and either he resided in the UK continuously for more than two years prior to the termination, or the incapacity arose from an accident at work or occupational disease which entitled him to a pension payable in the UK.
    • An EEA national has lived continuously in the UK for three years but is now economically active in another EEA state but has retained a place of residence in the UK which s/he returns to at least once a week.
    • The family member of a worker or self-employed EEA national, where the EEA national has died, the family member was resident with them before their death and either they had worked in the UK continuously for the two years prior to death or their death was the result of an accident at work or occupational disease.
  • A person who left Montserrat after 1st November 1995 as a result of the volcanic eruption.
  • A person who is in the UK as a result of being deported, expelled or removed by compulsion to the UK from another country.
  • A person who arrived in the UK on or after 28th February 2009 but before 18th March 2011, from Zimbabwe, who is part of the UK Government resettlement programme for elderly UK citizens in Zimbabwe with social or health care needs.

Broadly the overall effect of Regulations 4(1) and 4(2) combined is that:

  • EEA nationals who are economically active or acquired the right to reside through economic activity are eligible.
  • Other EEA nationals with rights to reside (except jobseekers and those with three-months right to reside) are eligible but have to pass the habitual residence test.
  • UK nationals and people with right of abode are eligible but have to pass the habitual residence test unless they have been deported or expelled from another country or have arrived via one of the named evacuation programmes.
  • Those EEA nationals who have no right to reside are not eligible.
  • Those who have a right to reside as the parent/s of a UK citizen child are not eligible if they applied after 8 November 2012.

Regulations 5 and 6

Regulations 5 and 6 define who is eligible for homelessness assistance by duplicating the rules in regulations 3 and 4, but with the addition a further class (Class E) of applicants that are subject to immigration control but who are eligible for assistance. Class E covers various types of asylum seeker who made their application for asylum before April 3rd 2000 and who have not received a decision. There are probably no people left in this class.

Welsh regulations

In Wales the current regulations are:

The allocations regulations name (in Regulation 4 as amended) the classes of people subject to immigration control but eligible for an allocation of housing as:

  • Class A: people with refugee status.
  • Class B: people with exceptional leave granted outside the immigration rules with no conditions as to accommodation and support (includes people with discretionary leave).
  • Class C: a person with current leave with no conditions attached (covers people with indefinite leave to remain) who are habitually resident but excluding those about whom an undertaking has been signed for the first five years after it was signed or s/he arrived, unless all of those who signed the undertaking are dead.
  • Class D: citizens of states which have ratified the Council of Europe Social Charter or the European Convention on Social and Medical Assistance who are legally present and habitually resident. This also covers EEA nationals who may not have a right to reside but who are, in any case, legally present.
  • Class D1: people with humanitarian protection.

Regulation 5 applies to people not subject to immigration control. It simply says that all those not subject to immigration control must pass the habitual residence test to be eligible, except:

  • those covered by the EU regulations on workers and the self-employed
  • those with a right to reside from the UK EEA regulations 2000 (these have now been replaced by the 2006 regulations)
  • a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.

It is important to note that these regulations mean that any EEA national with a right to reside, including rights that are non-qualifying in England, is thus eligible as long as they are habitually resident. The regulations, however, do not exempt accession state workers from the habitual residence test.

Those now covered by EEA regulation 15A(4A) also have a qualifying right to reside for housing allocation in Wales.

The homelessness regulations name the following classes of people subject to immigration control as eligible (Regulation 3):

  • Class A: people with refugee status.
  • Class B: people with exceptional leave granted outside the immigration rules with no conditions as to accommodation and support (includes people with discretionary leave).
  • Class C: a person with current leave with no conditions attached (covers people with indefinite leave to remain) who are habitually resident but excluding those about whom an undertaking has been signed for the first five years after it was signed or s/he arrived, unless all of those who signed the undertaking are dead.
  • Class D: a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.
  • Class E: citizens of states which have ratified the Council of Europe Social Charter or the European Convention on Social and Medical Assistance who are legally present and habitually resident. This also covers EEA nationals who may not have a right to reside but who are, in any case, legally present.
  • Classes F, G and H: various classes of asylum seekers (on entry applicants for asylum, plus two classes that do not currently include any people in them).
  • Class I: a person on IBJSA or income support (but not if s/he is receiving the benefit because of a temporary disruption of funds from abroad or as a displaced person getting subsistence).
  • Class J: a person with humanitarian protection.

Regulation 4 (1) applies to people not subject to immigration control (i.e. UK nationals and people with right of abode, EEA nationals with a right to reside and people covered by EEA regulation 15A(4A) i.e. parent/s with sole care of UK citizen children), and imposes the habitual residence test on all except:

  • those covered by EEA rules on workers and the self-employed
  • a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.

Note that the homelessness regulations include some classes of people who are not eligible for a housing allocation:

  • those in receipt of benefits
  • asylum seekers.

Homelessness applications by 'mixed' families

On 2nd March 2009, an amendment to the Housing Act 1996 came into effect, introduced by the Housing and Regeneration Act 2008 Schedule 15. This covers both England and Wales but only affects homeless applications where the applicant is:

  • eligible
  • not subject to immigration control (i.e. usually a UK or EEA citizen with a right to reside)
  • dependant on another person to be defined as in priority need or homeless, and that person would normally be regarded as ineligible.

An example would be a British woman who is married to an overseas student and lives with him and his nine-year old son (her stepson).

The HRA 2008 creates a new type of person, a 'restricted person' who is effectively neither eligible nor ineligible. This is used just to describe the ineligible family members of eligible people not subject to immigration control.

The Schedule inserts this definition of a restricted person into the Housing Act 1996, at Section 184(7), and sets up a procedure for dealing with applications made by those people affected:

  1. Where an eligible applicant applies as homeless but is only defined as in priority need or homeless because of the presence of a restricted person in his/her household, then s/he will be offered emergency and interim accommodation.
  2. His/her application for a housing allocation should not attract any reasonable preference given to homeless applicants but should attract the reasonable preference given to people for other reasons (medical or social need, overcrowded or insanitary conditions, etc) as appropriate.
  3. The local authority should seek, so far as is practicable, to bring their duty towards such cases to an end by offering private accommodation (but this is discretionary and the local authority can offer social housing if it so chooses: it can only do so in line with its published allocations policy, however).
  4. The local authority must serve a notice on the applicant explaining their decision, which should:
    • 'inform the applicant that their decision was reached on that basis,
    • include the name of the restricted person,
    • explain why the person is a restricted person, and
    • explain the effect of section 193(7AD) or (as the case may be) section 195(4A).'

More information

You can consult the English Code of Guidance issued to local authorities on how to carry out their homelessness duties; this has useful sections on eligibility and related matters but is now very out of date. Guidance on allocations for England was issued in June 2012.  The Welsh Government code of guidance on allocations and homelessness (pdf) was reissued in August 2012 and includes a helpful summary of eligibility in chapter 3. It does, however, note the intention of the Welsh Government to amend the relevant regulations at some point.

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Background Topics

How can we improve housing for new migrants in the UK?

Chartered Institute of Housing