This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

This page gives detailed guidance on aspects of the law relating to housing benefit (HB) and council tax benefit (CTB) claims that are relevant to new arrivals.

The requirement for a national insurance number for all claims

Sections 1(1A) and 1(1B)(a) of the Social Security Administration Act 1992 (pdf) require the claimant (regardless of their immigration status) to have been allocated a national insurance number (NINO) or to have applied for one to be allocated in order to be entitled to HB/CTB. 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)). In addition, a claim for benefit should be treated as an application for a NINO.

The requirement to have a NINO or to have applied for one is absolute. No benefit can be awarded until the evidence and information required to establish this has been supplied. It even applies where it is unlikely that the authorities will grant one: CH/4085/2007. Any matter relating to the provision of a NINO can be appealed to a tribunal, including the evidence that is required for one to be ascertained or the consequences for an award of HB/CTB if a request to allocate one is refused: CH/1231/2004 and [2009] UKUT 74 (AAC).

The requirement for a NINO and the rules outlined above also apply to the claimant's partner. There is one limited exception: if one member of a couple is ineligible for HB/CTB because they do not have leave from UKBA (i.e. if they have been granted temporary admission) then the requirement does not apply to that member. In these circumstances the DWP advises local authorities that they should assign a dummy number: HB/CTB Circular A4/2009.

However, a person who has no leave should definitely get good immigration advice about the possible consequences of claiming or getting HB/CTB on any current or future application for leave.

How the law works on HB/CTB in claims made by couples

Apart from the requirement to provide a national insurance number (which applies to both members of a couple) the two mechanisms by which migrants and recent arrivals (see the law on entitlement) can be excluded from benefit apply only to the claimant (and not also to their partner). So if in a couple one member is eligible for HB/CTB and the other is not the eligible member should make the claim.

Provided the eligible member makes the claim no further adjustments are made to any award to reflect the fact that one member is ineligible (unlike rules for housing allocations or homelessness assistance there is no equivalent concept of a restricted person). However, any income and capital that the ineligible member possesses will still be counted, together with the income and capital of the claimant.

What does the law say about dependent children?

There is no rule in HB law to exclude dependant children from being counted as part of the claimant's household even if they are subject to immigration control and do not have leave to enter the UK. Only the status of the claimant matters. Unlike rules for housing allocations or homelessness assistance there is no equivalent concept of a 'restricted person' even if no award would be made if the claimant had no dependents (e.g. their income would be too high to qualify if they were assessed as a single person).

The law on entitlement to housing benefit (HB) and council tax benefit (CTB) for migrants and recent arrivals

There are two different mechanisms by which migrants and recent arrivals 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 for HB/CTB purposes is governed by section 115 of the Immigration and Asylum Act 1999 (pdf) and the regulations made under it. Broadly a person will be subject to immigration control if they are a national of any state outside the EEA.

Whether a person is a person from abroad is governed by the Regulation 10 of 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 economically inactive EEA nationals)
• a person will be excluded from benefit if they are not habitually resident in the UK or the Republic of Ireland.

Persons subject to immigration control

Section 115 of the Immigration and Asylum Act 1999 (pdf) disqualifies a person who is '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 definition used in housing law because, for example, it does not include EEA nationals.

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 (i.e. an illegal entrant or overstayer or person with temporary admission such as an asylum seeker)
• has leave to enter the UK but 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.

Only those that fall within the s115(9) definition are excluded from HB/CTB. Anyone who falls outside the definition and who is habitually resident (i.e. not a 'person from abroad') is entitled to HB/CTB. A person will not be subject to immigration control if they are:

• a British Citizen
• a person who is a citizen of a commonwealth country with a 'right of abode'
• a person who has indefinite leave to remain (also known as 'settled status')
• a person who has been granted leave because of their refugee status
• a person who has been granted humanitarian protection
• a person who has discretionary leave (assuming, as is almost always the case, that their leave is not subject to a public funds condition).

In the case of the last three categories regulation 10(3B)(g)-(hh) of the HB Regulations states that they are not a 'person from abroad' (in other words they are exempt from the requirement to be habitually resident) and so are entitled to HB/CTB. In the case of the first three they are nearly always (on the facts) habitually resident in any case.

A person who has been granted temporary admission is excluded from HB/CTB because it is not a form of leave. Almost everyone else who has been granted limited leave on other grounds (i.e. as a visitor, student or migrant worker) or who has been granted leave to be supported by a family member is excluded from HB/CTB because either the leave is subject to a 'no recourse public funds' condition or (in the case of a family member) is usually subject to an undertaking.

However, s115(4) provides for exceptions to the exclusion from HB/CTB for those who would otherwise fall within the definition of immigration control.

Exceptions to the immigration control exclusion

Under section 115(4) certain categories of people who fall within the definition of 'subject to immigration control' but who are covered by a category prescribed by regulations are not excluded from benefit. Note that these exceptions override any exclusion from HB that would otherwise arise from a 'no public funds' condition or as a result of an undertaking.

The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (pdf), Regulation 2(1) and paragraphs 1 to 4 of the schedule set out the prescribed exceptions as follows:

• A person with limited leave who has previously supported themselves without claiming benefits, but whose funds from abroad are temporarily disrupted, provided that there is a reasonable expectation that their supply of funds will be resumed.
• A person who is the subject of a maintenance undertaking where:
  • all their sponsors have died; or
  • five years have passed since the undertaking was made.
• A person who is a national of an ECSMA or CESC treaty state who is lawfully present in the United Kingdom. Any form of leave, right to reside under EU law or temporary admission qualifies as lawful presence (Szoma v SSWP).

However, further conditions apply in each these three categories as a result of the HB Regulations before the claimant is entitled HB/CTB:

• In the case of the first category, the award of HB/CTB is limited to a maximum of six weeks within any one leave period (Regulation 10(4)). If the disruption of funds has already exceeded six weeks when the application is made there is no entitlement: CH/4248/2006. The application must be made at a time when the person is actually without funds and not after funding has been restored.
• In the case of the second category (maintenance undertakings), the claimant must also be habitually resident (although this is likely to be the case) (Regulation 10(1)-(2)).
• In the case of the third category (nationals of Croatia, Macedonia or Turkey), the claimant must be habitually resident and either have a right to reside as an EEA family member or have some form of leave (Regulation 10(1)-(3)). Temporary admission is not sufficient for this (Yesiloz v LB Camden) and so the authority is likely to refuse benefit. However, the requirement for leave or a right to reside appears inconsistent with the terms of the ECSMA/CESC treaties which only require lawful presence (see Szoma above). People who are refused benefit because they only have temporary admission should seek specialist advice.

Persons from abroad

Regulation 10(1) of the HB Regulations applies to all claimants whether or not they are subject to immigration control - including British Citizens. Regulation 10(2),(3) and (3A) excludes from entitlement to HB/CTB anyone who is 'a person from abroad'. The claimant is '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 EEA jobseeker or the family member of a EEA jobseeker: but see the next section if they have claimed jobseeker's allowance
• a person whose only right to reside is derived from the initial three-month period allowed to all EEA nationals.

The overall effect is that to be eligible for HB/CTB a person must:

• have a 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.

However, certain categories of claimant are exempt from either one or both of these requirements (see below).

Claimants who are not a person from abroad

Certain categories of claimant are defined as not a person from abroad (HB Regulations, 10(3B)(g)-(k)). In other words they are exempt from both the right to reside and habitual residence tests (and so are entitled to HB/CTB). The following claimants (whether or not they are EEA nationals) are entitled to HB/CTB:

• A person who is entitled to income support, income-based jobseeker's allowance, income-related employment and support allowance or state pension credit (savings credit or guarantee credit).
• 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 left Montserrat after 1st November 1995 as a result of the volcanic eruption.
• A person who entered the UK as part of the programme for vulnerable British Citizens in Zimbabwe.
• Certain claimants who were entitled to HB/CTB on 30th April 2004 and who have remained continuously entitled to HB/CTB or certain other benefits since (see Claimants exempt from the right to reside test only below).

In the case of the final category, strictly speaking these claimants also have to be habitually resident to be entitled to HB/CTB - but it is almost inconceivable that they would not be on the facts (and in some cases qualify through the first category).

Other EEA nationals who are not a person from abroad

Certain other EEA nationals are also defined as not a person from abroad (Regulation 10(3B)(a)-(f)). Broadly these are EEA nationals who are now or have previously been active in the UK labour market. An EEA national is not a person from abroad (and therefore entitled to HB/CTB) if they are:

• a self-employed person or a person who is self-employed but who is temporarily unable to work due to sickness (including a national of Bulgaria or Romania)
• a worker (other than a national of Bulgaria or Romania) currently engaged in work
• a person (other than a national of Bulgaria or Romania) who was previously a worker but who retains their worker status while being temporarily unable to work (EEA Regulations, Regulation 6(2))
• a family member of one of the above groups 
• a person who has a permanent right to reside (i.e. certain former workers who have retired due to sickness or old age (EEA Regulations, Regulations 5 and 15) other than a permanent right to reside acquired by five years' residence
• a national of Bulgaria or Romania who is a worker engaged in authorised work.

Nationals of Bulgaria or Romania who are self-employed including those in businesses where the profits are fairly limited (e.g. selling the Big Issue: [2011] UKUT 494 AAC) or who are temporarily unable to work due to sickness (EEA Regulations, Regulation 6(3)) are not subject to worker authorisation and are treated as any other EEA national. The same is true of those that have completed their 12 months qualifying period in authorised work or who are exempt from worker authorisation (Worker Authorisation Regulations, Regulation 2). 

All other claimants

All other claimants not covered by the above rules must have a right to reside and be habitually resident to be entitled to HB/CTB. This will include:

1. An EEA national who has previously worked in the UK and who is the parent of a child in education here.
2. An EEA national who is:
   • A person who has acquired a right to reside permanently by qualifying through five years' residence.
   • A student.
   • A jobseeker (i.e. a person who has entered the UK looking for work) other than a jobseeker who is a national of Bulgaria or Romania. A jobseeker is not entitled to HB/CTB except where they are entitled to income-based JSA (HB Regulations, 10(3A)(b) and 10(3B)(k)). (The exclusion applies to most other welfare benefits except JSA).
3. A national of Bulgaria or Romania who (not being self-employed) is subject to worker authorisation and who has not yet completed their 12-month qualifying period in authorised work and who is  currently engaged in authorised work.
4. Any other EEA national or their family member with a right to reside except where that right arises from:

• the first three months of their stay or
• a ‘Zambrano’ right (i.e. a non-EEA parent of a child that is a UK citizen).

Category (1) applicants (follow link for details) have a right to reside and so are entitled to HB/CTB provided they are also habitually resident on the facts (which in most cases they will be). The same is true of category (2) with the exception of jobseekers. EEA jobseekers have a right to reside but are excluded from HB/CTB (HB Regulations, 10(3A)(b)) and most other passported benefits. However, EEA jobseekers are entitled to claim jobseeker's allowance and if they are entitled to income-based JSA then they are also entitled to HB/CTB (HB Regulations, 10(3B)(k)).

Bulgarians and Romanians that are not in authorised work (category (3) above) - for example if their authorised work finishes before they completed their 12-month qualifying period - are not entitled to HB/CTB whilst out of work (HB Regulations 10(3B)(f) and Worker Authorisation Regulations, Regulation 2(4),(12)).

A claimant who falls in category (4) above is only entitled to HB/CTB if they are habitually resident and have a right to reside, other than a right to reside resulting from:

• their initial three-month period or
• a ‘Zambrano’ right to reside (the right to reside of a non-EEA national who is the parent of a child that is a UK citizen) (HB Regulations 10(2),(3),(3A)).

Non-EEA parents of a British child relying on a ‘Zambrano’ right were entitled to benefit until 8 November 2012 when the law was changed (SI 2012 No. 2857 - pdf).

Generally the only other claimants that are likely to have a right to reside (and so qualify under category (4)) are those that have been granted leave by UKBA or who are the family member of another EEA national. Temporary admission does not amount to a right to reside (Yesiloz v LB Camden). Outside of having leave or being an EEA family member, certain claimants who were entitled to HB/CTB on 30 April 2004 (see next section) and some self-sufficient EEA nationals also have a right to reside.

Self-sufficient EEA nationals only have a right to reside if they have comprehensive sickness insurance and have 'sufficient resources not become a burden on the social assistance system' (EEA Regulations, 4(1)(c)). - but what constitutes a burden is not defined and so must be judged on facts of the case. The DWP guidance (pdf) (paragraphs 4.122-123) suggests that there may be circumstances when a person could claim HB/CTB and continue to be self-sufficient (such as a temporary disruption of funds).

Claimants who are exempt from the right to reside test only

A person is exempt from the right to reside test if they were entitled to HB or CTB on 30th April 2004 and have been continuously entitled without any gaps to at least one of the following, since that date:

• housing benefit
• council tax benefit
• income support
• jobseeker's allowance (contribution-based or income-based)
• state pension credit (savings credit or guarantee credit).

Note that entitlement to any one of these benefits will also preserve entitlement to the others (HB Consequential Provisions Regulations, schedule 3 paragraph 6(5)-(8)). This exemption mainly benefits EEA nationals. Strictly speaking a claimant relying on this exemption would also need to be habitually resident to be entitled to HB/CTB - but it is inconceivable that they would not be habitually resident on the facts.