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The law on entitlement to housing benefit and council tax rebate

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) claims and to council tax rebate (CTR - also known as council tax reductions) claims that are relevant to new arrivals.

A number of changes to migrants' entitlements to benefits were made in early 2014 and they are summarised in a House of Commons Library publication.

The law on housing benefit (HB)

The law on HB regarding the eligibility of migrants is a mixture of statute (mainly the Immigration and Asylum Act 1999) and regulations (mainly the Housing Benefit Regulations 2006). Housing benefit is part of the social security system and the HB Regulations apply across England, Scotland and Wales. We refer throughout to the ‘HB Regulations’ although there are in fact two sets of regulations, one each for pension age and working age claims with relevant law referenced as ‘HB60+’ or ‘HB’ respectively in both cases, followed by the relevant regulation and paragraph.

The law on council tax rebate (CTR)

CTR law is no longer part of the social security system. In theory all local councils in England and Wales now set their own CTR scheme rules. In practice there is often very little variation between authorities in their local rules for the following reasons:

  • The Department for Communities and Local Government (in England) and Welsh Government in Wales are responsible for setting out a basic legal framework within which local schemes must operate (i.e. they set rules about what local rules can say). These rules are known as the ‘prescribed requirements’.
  • Most authorities (partly to avoid legal challenges to their local scheme) formally adopt the model scheme provided by DCLG/Welsh Government and then (if they choose to do so) vary a specific rule within that scheme rather than write the whole of their own scheme from scratch. The model scheme is known as the ‘default scheme’.

The power for a council to set its own CTR scheme rules is restricted to criteria which determine financial need (i.e. how the applicant’s income and capital is assessed) and does not include the power to exclude or limit entitlement on any other grounds such as residency qualifications or nationality R (Winder and others v Sandwell MBC) [2014] EWHC (Admin) 2617.

Therefore the law relating to CTR entitlement for migrants is found in the prescribed requirements and default scheme regulations (one set of each for each country), as follows:

For each set the default scheme regulations (relating to new arrivals) say exactly the same thing as in the prescribed requirements regulations. For ease of reference the law below relates to HB – the equivalent CTR regulation is provided at the end of the relevant section.

In both England and Wales each authority must publish the scheme rules that apply in its area. Specific details about a local scheme can normally be found on the authority’s website. In practice most local councils choose to adopt the default scheme rules to determine how income is assessed or express their local scheme in terms of the default scheme rules with or without express modifications.

The requirement for a national insurance number for all claims

For HB, 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. For CTR these requirements are replicated in the appropriate ‘prescribed requirements’ and ‘default scheme’ regulations. Claims for CTR are officially  known as ‘applications’ but hereafter for convenience we refer to both processes (HB and CTR) as claims.

In the case of refugees the Home Office screening interview is shared with the DWP to enable a national insurance number to be allocated – although this procedure does not always work perfectly. If the liaison does not work then a claim for benefits will trigger the NINO application process and the refugee is invited to attend a NINO interview.

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/CTR because they do not have leave from the Home Office (i.e. if they have been granted temporary admission) then the requirement does not apply to that member. For HB claims in these circumstances the DWP advises local authorities that they should assign a dummy number: DWP HB 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/CTR on any current or future application for leave.

Regulations: HB 4(a)-(c); HB60+ 4(a)-(c); CTPE schedule 8, paragraph 7(2),(3); CTRE 113(2),(3); CTPW schedule 13, paragraph 5(2),(3); CTRW 111(2),(3).

In the case of a claim for HB an application for a NINO is sufficient if it is accompanied by all the evidence and information required to process it (section 1(1B)(b)). In addition, a claim for HB should be treated as an application for a NINO.

For HB claims 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 have 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 if a request to allocate one is refused: CH/1231/2004 and [2009] UKUT 74 (AAC).

How the law works on HB/CTR 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/CTR 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 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.

HB 82(1); HB60+ 63(1); CTPE schedule 8 paragraph 4(1); CTRE 109(1); CTPW schedule 13 paragraph 1(1); CTRW 107(1).

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 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).

For CTR the regulations require each authority to include in the household any child or young person who would be included in a claim for HB. Local schemes cannot exclude children as part of the claimants on the grounds of their immigration status – although they could treat any income and capital of that child differently to HB (where it is ignored).

Regulations: HB 20,21; HB60+ 20,21; CTPE 7,8; CTRE 7,8; CTPW 7,8; CTRW 7,8.

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

There are two different mechanisms by which migrants and recent arrivals can be excluded from HB/CTR. These are:

  • as a person subject to immigration control
  • as a person from abroad (in CTR law the equivalent provision is that the applicant is ‘treated as not being in Great Britain’).

Whether a person is subject to immigration control for HB/CTR 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.

CTR Regulations: CTPE 12; CTRE 21; CTPW 28; CTRW 19.

Persons subject to immigration control

Section 115(1),(3) of the Immigration and Asylum Act 1999 (pdf) disqualifies a person who is 'subject to immigration control' from certain social security benefits (including HB). (For CTR the exclusion derives from the CTR regulations which adopt the Act definition: CTPE 13; CTRE 22; CTPW 29; CTRW 20). 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 as 'subject to immigration control' 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/CTR. Anyone who falls outside the definition and who is habitually resident (i.e. not a 'person from abroad') is entitled to HB/CTR. For HB/CTR purposes only a person is not subject to immigration control under the s115(9) definition if he/she is:

  • 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)
  • a person who has been granted leave under the domestic violence rule.

In the case of the last four categories the HB Regulations state 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/CTR. (Regulations: HB 10(3B)(g)-(hh); HB60+ 10(4A)(g)-(hh); CTPE 12(5)(d)-(f); CTRE 21(5)(d)-(f); CTPW 28(5)(d)-(f); CTRW 19(5)(d)-(f)).

In the case of the first three they are nearly always habitually resident on the facts and are only likely to be excluded if they make a claim within the first few months after entering the UK after a prolonged period living abroad. And in the case of the first three that person is treated as habitually resident if they entered the UK as a result of their deportation, expulsion or removal from another country (HB 10(3B)(i); HB60+ 10(4A)(i); CTPE 12(5)(g); CTRE 21(5)(g); CTPW 28(5)(g); CTRW 19(5)(g)).

Certain British nationals who have been evacuated to the UK as a result of the volcanic eruption in Montserrat or as part of the programme for vulnerable British citizens from Zimbabwe are also required to be habitually resident for HB/CTR (prior to 29th October 2013 they were exempt from this requirement for HB purposes) but it is inconceivable that they would not be now habitually resident on the facts. (And in Wales for CTR purposes they continue to be exempt: CTPW 28(5)(h)-(i); CTRW 19(5)(h)-(i).)

A person who has been granted temporary admission is excluded from HB/CTR 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/CTR because either the leave is subject to a 'no recourse to public funds' condition or (in the case of a family member) subject to a maintenance undertaking.

However, s115(4) provides for exceptions to the exclusion from HB (but not for CTR) 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 HB. 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 Regulations 2000 (pdf), Regulation 2(1) and paragraphs 2 to 4 of the schedule, set out the prescribed exceptions as follows:

  • 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).

The second exception also applies to local CTR schemes but in England the authority may still exclude the person under the local scheme rules if they are of working age.

In both cases, the claimant must also be habitually resident (Regulation 10(1)-(2)) as a result of the HB Regulations before the claimant is entitled to HB. And in the case of the second category (nationals of Macedonia or Turkey), the claimant must either have a right to reside as an EEA family member or have some form of leave (Regulations: HB 10(1)-(3); HB60+ 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.

In the case of CTR the s115(9) definition only applies because the CTR regulations state that it is a requirement to be entitled (CTPE 13; CTRE 22; CTPW 29; CTRW 20). The same regulations make clear that this requirement does not apply to ECSMA or CESC nationals so the outcome is exactly the same as the HB regulations (CTPE 13(1A); CTPW 29(2); CTRE 20(2)). Note that in England this exception does not appear in the CTRE regulations – but the CTPE regulations make it a requirement of any local scheme: CTPE 13(1A).

Persons from abroad/not being in Great Britain

Regulation 10(1) of the HB Regulations applies to all claimants whether or not they are subject to immigration control - including British Citizens. Regulations 10(2),(3) and (3A) exclude from entitlement to HB/CTR anyone who is for HB 'a person from abroad' or for CTR treated as 'not being in Great Britain' (for convenience here we refer to ‘a person from abroad’ to encompass both terms).

The regulations as to who is 'a person from abroad' are structured in the following way:

  1. the claimant is a person from abroad if he/she is not habitually resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland
  2. the claimant cannot be treated as habitually resident unless they possess a right to reside in the UK (e.g. as a British citizen or an EEA derived right)
  3. certain categories of the right to reside are specifically excluded from conferring a right to HB/CTR (broadly, certain EEA rights for people who are not in work)
  4. certain categories of the right to reside qualify the claimant to be treated as if they are habitually resident (broadly, people granted leave on humanitarian grounds or EEA nationals in work)
  5. certain other categories of claimant are exempt from one of the two requirements to be entitled to HB/CTR (right to reside or be habitually resident).

Regulations: CTPE 12(1)-(4); CTRE 21(1)-(4); CTPW 28(1)-(4); CTRW 19(1)-(4).

The overall result is that:

  • every claimant must possess a right to reside and be habitually resident (from 1 and 2) to be entitled to HB/CTR
  • certain claimants are exempt from both requirements (and so automatically entitled to HB/CTR – see next section (from 4))
  • certain EEA rights to reside do not confer a right to HB/CTR (from 3)
  • some claimants are exempt from one of the two tests (from 5).

Claimants who are not a person from abroad

The following claimants are entitled to HB by virtue of being exempt from the right to reside and habitual residence tests, and also for CTR with some exceptions as described below:

  • A person who has been granted leave by the Home Office on humanitarian grounds (e.g. refugee status or a person granted humanitarian protection). 
  • A person who has been granted leave under the domestic violence rule.
  • A British citizen or other person with settled status who has entered the UK as result of their deportation, etc. 
  • In the case of claims for HB only in England or HB and CTR in Wales, a person in receipt of a passport benefit: although this does not apply to certain EEA jobseekers claiming income-based JSA. In certain other cases claimants with historic rights to HB are exempt from the requirement to have a right to reside.
  • An EEA national (except a national of Croatia who is a worker and subject to worker authorisation) who is:
  • A Croatian national who is a worker currently engaged in authorised work but who has not yet completed their one year qualifying period.

Regulations: HB 10(3B)(za)-(zc),(g)-(l); HB60+ 10(4A)(za)-(zc),(g)-(k); CTPE 12(5)(a)-(c); CTRE 21(5)(a)-(g); CTPW 28(5)(a)-(g),(j),(k); CTRW 19(5)(a)-(g),(j),(k).

The first two categories are dealt with under the section on persons subject to immigration control and apply equally to claims for HB and CTR. The third category (passport benefits) in England applies only to claims for HB, but both HB and CTR in Wales are dealt with in the next section. In the case of the last two categories (EEA nationals) claimants are entitled to HB in every case but to CTR only if they are also habitually resident.

Nationals of Croatia 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).

Claimants in receipt of passport benefits

For HB only in England and HB/CTR in Wales certain claimants in receipt of a passport benefit are defined as not persons from abroad and so are entitled (HB Regulations, 10(3B)(k); HB60+ 10(4A)(k); CTRW 19(5)(j)). The qualifying passport benefits are: income support, income-related employment and support allowance and state pension credit. Income-based JSA is also a passport benefit but in the case of EEA jobseekers only if the claimant has some other right to reside (HB Regulations 10(3B)(l).

In addition for HB only certain claimants who have been on HB since 30 April 2004 are exempt from the right to reside test (see below). 

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/CTR (HB Regulation 10(1)-(3)). 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; or
    • a student; or
    • a jobseeker (i.e. a person who has entered the UK looking for work).
  3. A national of Croatia 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 in the UK; or
    • the right to enter the UK to look for work (i.e. as an EEA jobseeker); or
    • a ‘Zambrano’ right (i.e. a non-EEA parent of a child that is a UK citizen).
  5. In Wales only and only for claims to CTR a person who is a national of Macedonia or Turkey and who has any kind of leave (whether or not it is subject to a maintenance undertaking or a no public funds condition) is also included.

(In other words, the three month and ‘Zambrano’ right to reside do not help the claimant qualify for HB/CTR.)

Regulations: CTPE 12(1)-(3); CTRE 21(1)-(3); CTPW 28(1)-(3); CTRW 19(1)-(3).

Category (1) applicants (follow link for details) have a right to reside and so are entitled to HB/CTR 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 as follows:

  • In the case of claims for HB, EEA jobseekers have a right to reside but it is not a qualifying right to reside for HB (HB Regulations, 10(3A)(b)) and the passport benefits: income support, income-related ESA and state pension credit. An EEA jobseeker can qualify for income-based JSA but not until they have been resident in the Common Travel Area for three months (Regulation 85(2A), Jobseekers Regulations). Further, since 1 April 2014 income-based JSA only acts as a passport benefit to HB if the claimant has some other right to reside (other than as a jobseeker, the initial three-month right of residence or a ‘Zambrano’ right) (HB Regulations, 10(3B)(l)). This limitation on passport status applies equally to those who have been in work but who lose their worker status after being unemployed for over six months. However, income-based JSA continues to act as a passport benefit if the claimant was on JSA(IB) and HB on 31 March 2014 until such time as their JSA ends or they make a new claim for HB (Regulation 3, SI 2014 No. 539).
  • In the case of claims for CTR the normal rule applies (i.e. they have a right to reside by virtue of being a jobseeker but have to show they are habitually resident to be entitled).

Croatians who are subject to worker authorisation and 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/CTR whilst out of work because they do not have a right to reside (HB Regulations 10(3), CTPE 12(3); CTRE 21(3); CTPW 28(3); CTRW 19(3) and Worker Authorisation Regulations, Regulation 2(4),(5), 5(1),(2).

A claimant who falls in category (4) above is only entitled to HB/CTR if they are habitually resident and have a right to reside, the right to reside must be some right other than any of the following:

  • the right to reside during the initial three-month period in the UK that all EEA nationals enjoy regardless of their work status; or
  • the right to reside as a jobseeker (but see above for category 2 if they qualify for income-based JSA); or
  • a ‘Zambrano’ right (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); CTPE 12(4); CTRE 21(4) ; CTPW 28(4); CTRW 19(4).

Non-EEA parents of a British child relying on a ‘Zambrano’ right were entitled to HB 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 the Home Office or who are the family member of another EEA national. Temporary admission does not amount to a right to reside (Yesiloz v LB Camden).

Self-sufficient EEA nationals only have a right to reside if they have comprehensive sickness insurance and have 'sufficient resources not to 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 the facts of the case. The DWP guidance (pdf) (paragraphs 4.122-123) suggests that there may be circumstances when a person could claim HB and continue to be self-sufficient (such as a temporary disruption of funds) – and there is no reason why this should not also apply to claims for CTR.

Claimants who are exempt from the right to reside test only

This section applies to HB only: there is no equivalent provision for CTR. A person is exempt from the right to reside test if they were entitled to HB 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 (up to and including its demise on 31 March 2013)
  • 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 - but it is inconceivable that they would not be habitually resident on the facts.

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