The law on entitlement to housing benefit includes:
The requirement for a national insurance number for all claims
Sections 1(1A)and 1(1B)(a) of the Social Security Administration Act 1992 requires that all claimants (regardless of their immigration status) must have been allocated a national insurance number or have applied for one to be allocated in order to be entitled to HB/CTB. This requirement also applies to the claimant’s partner but not their dependent children (section 1(1C) and Regulation 4 of the Housing Benefit Regulations 2006 (footnote1)). An application for a number will be sufficient if the application is accompanied by all the evidence and information required to process it (section 1(1B)(b)).
Case law has established that anyone can apply for a national insurance number without any detrimental effects on their immigration status. However, couples can sometimes be caught out by this provision if one member is subject to immigration control and has failed to apply for a national insurance number. This will disqualify them both from benefit where they would be otherwise entitled.
The law on entitlement to housing benefit (HB) and council tax benefit (CTB) for recent migrants
There are two different mechanisms by which recent migrants can be excluded from HB/CTB. These are:
- as a person ‘subject to immigration control’
- as a ‘person from abroad’.
Whether a person is 'subject to immigration control' is governed by section 115 of the Asylum and Immigration Act 1999 and the regulations made under it. Broadly a person will be subject to immigration control (for HB/CTB purposes) if they are a national of any state outside the EEA.
Whether a person is a ‘person from abroad’ is governed by the Housing Benefit Regulations 2006 (as amended). Broadly this exclusion will apply to anyone who has recently entered the UK for the first time (including British citizens) and mainly (but not exclusively) affects EEA nationals. The test has two elements either of which can disqualify a person from benefit. These are:
- a person will be excluded from benefit if they do not have a ‘right to reside’ (broadly this affects EEA nationals)
- a person will be excluded from benefit if they are not habitually resident in the UK or the Republic of Ireland.
Differences in the sources of law for HB and CTB and between claimants aged under or over 60
There are separate sets of regulations which determine who is a person from abroad for HB and CTB. Further for both HB and CTB there are two sets of regulations; one where the claimant and any partner are aged under 60 and another where the claimant or any partner are aged 60 or over, making four sets in total. We refer to these as follows:
- the HB Regulations (where the claimant or both members of a couple are both aged under 60)
- the HB60+ Regulations (where the claimant or either member of a couple are aged 60 or over)
- the CTB Regulations (where the claimant or both members of a couple are both aged under 60)
- the CTB60+ Regulations (where the claimant or either member of a couple are aged 60 or over.)
Although the rules are contained in distinct sets of regulations the wording in each is identical. For this reason we refer throughout the main text only to HB regulations with the equivalent regulation in each set being identified in footnotes.
Persons subject to immigration control
Section 115 of the Immigration and Asylum Act 1999 disqualifies persons who are ‘subject to immigration control’ from certain social security benefits (including HB/CTB) (sub-sections 1 and 3). The section sets its own internal definition of ‘subject to immigration control’ which is much more tightly drawn than the immigration law definition.
Section 115(9) defines ‘subject to immigration control’ as being a person who is not a national of an EEA state and who:
- requires leave to enter the UK but does not have it (ie an illegal entrant or overstayer or asylum seeker)
- has leave to enter the UK but which is subject to a ‘no recourse to public funds’ condition
- has leave to enter the UK given as a result of a maintenance undertaking
- has leave to enter the UK only as a result of the fact that they are awaiting the outcome of an appeal against a decision to vary or refuse to vary limited leave.
Case law has established that the exclusion will apply to a couple where only one member is subject to immigration control except where the eligible member is also entitled to income support, income-based jobseeker’s allowance, income-related employment and support allowance or the guarantee credit (in which case the eligible member must be the claimant for HB/CTB).
Under section 115(4) certain categories of people who fall within the definition of ‘subject to immigration control’ but who are prescribed by regulations are not excluded from benefit. Note that these prescribed exceptions override any public funds restriction that would otherwise apply.
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, Regulation 2(1) and paragraphs 1 to 4 of the schedule set out the prescribed categories of person who despite being subject to immigration control are nevertheless not excluded from HB/CTB:
- a person with limited leave who has previously supported themselves without claiming benefits but whose funds are temporarily disrupted provided that there is a reasonable expectation that their supply of funds will be resumed
- those who arrived as sponsored immigrants subject to an undertaking and the undertaking or the arrival was less than five years ago, unless all the sponsors have died (in which case they have the same rights as other settled people)
- a person who is a national of a (non-EEA) state that has ratified either the European Convention on Social and Medical Assistance (ECSMA) or the Council of Europe Social Charter (CESC) and who is lawfully present (footnote2) in the United Kingdom (the only non-EEA member states this currently applies to are Croatia, Macedonia and Turkey).
An up-to-date list of countries that have ratified the ECSMA or CESC treaties (see treaties 14 and 35 on the full list).
Persons from abroad
- The Housing Benefit Regulations 2006, Regulation 10(1) (footnote3) applies to all claimants whether or not they are a person who is subject to immigration control. It excludes from entitlement to HB/CTB anyone who is ‘a person from abroad’. Paragraphs (2), (3) and (3A) state that a claimant will be ‘a person from abroad’ if they are:
- a person who is not habitually resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland
- a person whose only right to reside in the UK derives from their status as a jobseeker or the family member of a jobseeker (footnote4)
- a person whose only right to reside derives from their initial right to reside for a period not exceeding three months under Regulation 13 of the EEA Regulations.
The overall effect is that unless they are exempt from this provision (see Regulation 10(3B) below) to be eligible for HB/CTB a person must:
- have right to reside in the UK (other than as a jobseeker or the right of an EEA national during their first three months of stay in the UK); AND
- be habitually resident.
Broadly a person will have a right to reside if they have any form of leave or some other right to reside as an EEA citizen other than that of an exempt person (see below). Note that a person will have transitional protection from the right to reside test if they have been continuously in receipt of certain benefits since 30 April 2004 (footnote5).
Broadly a person will be habitually resident if they have been living in the UK for the last two years. DWP guidance on habitual residence (referred to as second stage HRT).
Regulation 10(3B) says that the following people are not to be treated as people from abroad under Regulation 10(1) and so are eligible for HB/CTB:
- EEA nationals other than nationals of Bulgaria or Romania or an A8 state who are ‘workers’
- EEA nationals who are a self-employed person
- A person who was previously in one of the above groups but who is temporarily out of work and is a person who: (footnote6)
- is temporarily unable to work because of an accident or illness
- is registered as a jobseeker and who
- was employed for one year or more before becoming unemployed
- has been unemployed for no more than six months; or
- can provide evidence that they are seeking work and have a genuine prospect of being engaged
- is involuntarily unemployed and has started vocational training
- has started vocational training related to their previous employment
- A family member of one of the above groups
- A person who has a permanent right to reside in the UK because they are (footnote7):
- 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 2 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 who 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
- Accession workers who are qualified because they are from an A8 country, working and have applied to be on the worker registration scheme or because they are from Romania or Bulgaria and working under the authorisation scheme or exempted from it (footnote8)
- A person who left Montserrat after 1 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 has been granted refugee status, or humanitarian protection, or discretionary leave
- A person who is entitled to income support, income-based jobseeker’s allowance or state pension credit
- A person who left Lebanon on or after 12 July 2006 because of armed conflict there. This exemption only has effect until 31 January 2007.
footnote1 | Regulation 4 of HB60+ Regulations; CTB Regulations and CTB 60+ Regulations respectively.
footnote2 | A person will be lawfully present if they have any form of leave or temporary admission R(IS) 2/06. However a person who only has temporary admission will not have the right to reside and so will be excluded as 'a person from abroad'.
footnote3 | The equivalent regulation for housing benefit for claimants who are aged 60 or over is Regulation 10 of the HB60+ Regulations; and for council tax benefit Regulation 7 of the CTB Regulations and CTB60+ Regulations respectively.
footnote4 | However, note that an EEA jobseeker does have the right to claim income-based jobseeker’s allowance which, if they are entitled, will qualify them for HB/CTB.
footnote5 | Schedule 3 paragraph 6(5)-(8) The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006, SI 2006/217
footnote6 | The categories below are derived from Regulation 6(2) of The Immigration (European Economic Area) Regulations 2006, SI 2006/1003, which sets out the categories of persons who are treated as a worker while temporarily out of work.
footnote7 | The categories below are derived from Regulations 5 and 15 of The Immigration (European Economic Area) Regulations 2006, SI 2006/1003 , which set out categories of persons who have a right of permanent residence.
footnote8 | The arrangements for Bulgarian and Romanian workers were added by SI 2006/3340, The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (No 2) Regulations 2006 which came into effect on 1 January 2007, when those two countries joined the EU.