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The law on entitlement to universal credit, 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 universal credit (UC) and housing benefit (HB) that are relevant to new arrivals. A linked page gives guidance on claims for council tax rebate (CTR - also known as council tax reductions).

Universal credit: Important message about COVID-19

Changes have been made to universal credit and other benefits during the crisis. There is government guidance on the changes - it is updated regularly. CIH has published a fact sheet on welfare benefits during the crisis, which is also being updated. Please look at these first. Here are some extra points about the changes:

  • An EEA national who is self-employed or in paid employment when they get the virus keeps their self-employed/worker status while incapable of work. They should pass this test if self-employed and they claim benefits, or if they are working and receive statutory sick pay.
  • Those receiving universal credit and/or jobseeker’s allowance as a retained worker aren’t limited to six months benefit: they are treated as a worker for as long as they are incapable of work – for detailed advice see our advisers’ page on benefits.
  • If someone enters the UK while on a contributory sickness benefit from their home country, the home country is still responsible for paying it. But if someone starts work in the UK then the DWP is responsible – in some cases even if their earnings are below the national insurance threshold. The DWP has published detailed guidance for specialist advisers about this (ADM memo 01/20).

To get the latest on other changes to benefits, evictions, landlord documents checks, asylum support and many other issues, go to our coronavirus page which is being updated daily.

The law on UC and HB

The law on UC/HB regarding the eligibility of migrants is a mixture of statute (mainly section 115 of the Immigration and Asylum Act 1999) and regulations (mainly the Universal Credit Regulations 2013 and the Housing Benefit Regulations 2006) both of which refer to rights that are described in the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’). The universal credit and housing benefit regulations apply across England, Scotland and Wales. In the case of HB 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 ‘HB66+’ or ‘HB’ respectively in both cases, followed by the relevant regulation and paragraph.

Since December 2018, anyone aged under 66 who wants help with housing costs must claim universal credit. Claims made for HB before then can continue for the time-being but starting sometime in 2021 or 2022 these will be transferred (‘migrated’) to UC, and HB will only continue for pension-age claimants.

DWP guidance on UC and HB

The DWP guidance (where helpful) referred to on this page is to: Advice for Decision Making: Staff Guide, Chapter C1 (pdf) for UC; and the Housing Benefit Manual (Part C4 (pdf) and Part D1 (pdf)) for HB, followed by the paragraph number in each case).

The requirement for a national insurance number

Sub-sections 1(1A) and 1(1B)(a) of the Social Security Administration Act 1992 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 UC/HB (and most other social security benefits). An application for a NINO is enough if it is accompanied by all the evidence and information required to process it (s1(1)(b)). The requirement applies to the claimant and any person included in the application except a dependent child (s1(1A); UC Claims and Payments Regulations, Regulation 5; HB 4(a); HB66+ 4(a)). But in the case of a couple where only one member is eligible there are some differences in the way the law works depending on the status of the ineligible person and whether the claim is for UC or HB:

  • for UC, it does not apply where the eligible partner claims UC as a single person (but in any other case it applies to both as joint claimants);
  • for HB (and CTR) it applies to the ineligible partner except where:
    • s/he requires leave to enter or remain in the UK but does not have it (i.e. a person with temporary admission, illegal entrant or overstayer); and
    • s/he is not habitually resident; and
    • s/he has not been allocated a NINO already.

In these circumstances the DWP advises local authorities that they should assign a dummy number: HB Guidance Manual part D1 (paras D1.284-287). However, it is not necessarily safe to claim (see next section claims by couples).

The requirement to have a NINO or to have applied for one is absolute. No UC/HB/CTR 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 UC/HB if a request to allocate one is refused: CH/1231/2004 and [2009] UKUT 74 (AAC).

How the law works in claims made by couples

For UC, couples make a joint claim, so both the claimant and their partner need to be eligible to get UC. However, if only one member is excluded (for example, where a British Citizen has a non-EEA spouse) the eligible member can claim UC as a single person and it is awarded at the single person rate (plus any child dependant additions). In these circumstances UC paid to the eligible partner doesn’t count as public funds and so the ineligible partner doesn’t break the terms of their leave. (UC 3(1),(3)(b),(e); Immigration Rules, rules 6A-6C).

For HB/CTR only one person is the claimant (HB 82(1); HB66+ 63(1)) so if only one member is eligible that person should make the claim. The award includes the allowance for a couple and the income and capital of both members is counted. However, where the claimant’s partner is subject to immigration control it is not necessarily safe to claim because the higher couple’s allowance counts as ‘recourse to public funds’ (Immigration Rules, paragraph 6A) unless one of the prescribed exceptions applies (Immigration Rules, paragraph 6B). The local authority may decide to pass the information on to the Home Office – although they are not obliged to do so (HB Guidance Manual paragraph C4.218). In these circumstances the ineligible partner should always get good immigration advice about the possible consequences on any current or future application for leave.

What does the law say about dependent children?

In UC/HB/CTR law any dependent child of the claimant or his/her partner is included as part of the claimant's household, regardless of the child’s immigration status (UC 4; HB 20, 21; HB66+ 20, 21). Only the status of the claimant matters. Unlike rules for homelessness assistance there is no equivalent concept of a 'restricted person' even if without them the claimant would not qualify for an award (e.g. their income would be too high to qualify if they were assessed as a single person).

The law on entitlement to UC, HB and CTR

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

  • as a person subject to immigration control
  • as a person who is not present in Great Britain or treated as not being present in Great Britain (in HB law as a ‘person from abroad’).

Whether a person is subject to immigration control for UC/HB/CTR purposes is governed by section 115 of the Immigration and Asylum Act 1999 and the regulations made under it. Broadly, since 1 January 2021 a person will be subject to immigration control if they are a national of any state other than the UK or Ireland.

Whether a person is treated as not being present in Great Britain or, for HB purposes, is a person from abroad is governed by Regulation 9 of the Universal Credit Regulations 2013 and 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 who entered the UK before 1 January 2021.

Persons subject to immigration control

Section 115 of the Immigration and Asylum Act 1999 disqualifies a person who is 'subject to immigration control' from certain social security benefits (including UC and HB). The section sets its own internal definition of 'subject to immigration control' which is not the same as in immigration law. From 1 January 2021, it includes nationals from an EEA member state (SI 2020 No 1309, Reg 12(7)).

Apart from that section 115(9) defines a person as being 'subject to immigration control' if he/she is a person 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 public funds' condition
  • has leave to enter the UK given because of a maintenance undertaking
  • has leave to enter the UK only because they are waiting for the outcome of an appeal against a decision to vary, or refuse to vary, limited leave.

Only persons who that fall within this definition are excluded from UC/HB/CTR. In practical terms this means that a person is not excluded by this provision if he/she:

  • is a British or Irish citizen
  • is a person who is a citizen of a commonwealth country with a ‘right of abode
  • is an EEA national who entered the UK before 1 January 2021, at least until 30 June 2021
  • falls within one of the prescribed exceptions set out in regulations
  • has indefinite leave to remain (also known as 'settled status') – including an EEA national with EU settled status
  • has been granted leave because of their refugee status
  • has been granted humanitarian protection
  • has discretionary leave (assuming, as is almost always the case, that their leave is not subject to a public funds condition); or
  • has been granted temporary leave under the destitution domestic violence concession.

Irish citizens do not need leave to enter the UK: Immigration Act 1971, s3ZA and SI 2020 No 1279, Reg 3. EEA nationals who entered the UK before 1 January 2021 can continue to use their EEA rights to reside (and so do not ‘require leave’) at least until 30 June 2021 (SI 2020 No 1209, Reg 3), but after then only if they have EU pre-settled status (SI 2020 No 1309, schedule 4 paras 1-4).

People with limited leave only fall within s115 because limited leave is nearly always granted with a ‘no public funds’ condition. This condition is lifted for three months under the domestic violence concession (which allows that person time to apply for settled status).

Note that a person who is not excluded by section 115 is not automatically entitled to UC/HB/CTR – they also have to show they have a ‘right to reside’ and that they are habitually resident. But anyone with leave, including limited leave, has a right to reside and in the case of the last four categories the UC and HB Regulations state that they are exempt from both of these conditions (Regulations: UC 9(4)(d)-(f); HB 10(3B)(g)-(hh); HB66+ 10(4A)(g)-(hh)).   

Section 115(4) provides for exceptions 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 UC/HB (and a similar rule replicates this in the CTR regulations). These exceptions are in the Social Security Immigration and Asylum Regulations 2000, No 636:

  • For universal credit claims made on or after 1 January 2021, the only exceptions are to a person who is the subject of a maintenance undertaking where all his/her sponsors have died, or five years have passed since the undertaking was made. See Regulation 2(1A) (as amended by SI 2020/1505 reg 2(2)(a)) and schedule part 1, paragraphs 2 and 3.
  • For housing benefit (i.e. people aged 66 or over) the same exceptions apply as for UC but also to nationals of certain European countries who have any kind of leave – including leave with a ‘no public funds’ condition (Regulation 2(1) and schedule, part 1, paragraphs 2-4) a fact that is often overlooked by decision makers: [2015] UKUT 438 (AAC).
  • For UC claims made before 1 January 2021 the same exceptions as HB apply. These awards continue until UC entitlement ends (SI 2020/1505, Reg 1(2)).

But even if one of these exceptions applies that doesn’t mean that the person is entitled to UC/HB: the claimant must still show that they have a right to reside and that they are habitually resident (UC Regulations, Reg 9(1),(2), HB (Pension age) Regulations, Reg 10(1)-(3).

Persons from abroad/not being in Great Britain

Regulations 9(1),(2) and 10(1)-(3) of the UC and HB Regulations respectively apply to all claimants whether or not they are subject to immigration control - including British Citizens. It excludes from UC/HB/CTR anyone who is treated as not being in Great Britain (for HB 'a person from abroad') (for convenience here we refer to ‘a person not being in Great Britain’ to encompass both terms).

The regulations treat a person as ‘not being in Great Britain’ if s/he:

  • is not habitually resident in the British Isles or the Republic of Ireland; or
  • does not have a ‘right to reside’ in the British Isles or the Republic of Ireland (because the law says s/he cannot be treated as being habitually resident).

If the claimant fails either limb, they are excluded on the grounds that they are (treated as) ‘not present in Great Britain’ / ‘not habitually resident’. However, the law provides for certain exemptions.

Claimants who are not ‘a person from abroad’

The following claimants are entitled to UC/HB/CTR because they are exempt from the requirement to have a right to reside and/or be habitually resident:

  • A person who has been granted:
    • refugee status, humanitarian protection or discretionary leave as a result of their asylum application, or
    • leave under the Home Office destitution domestic violence concession. 
  • A British citizen or other person with settled status who has entered the UK as a result of their deportation, expulsion or removal from another country. 
  • For HB/CTR, a person in receipt of  one of the out-of-work legacy benefits or the guarantee credit element of state pension credit (but for EEA nationals who get income-based jobseeker’s allowance, see below).
  • An EEA worker/self-employed person (including a retained, retired or frontier worker) who entered the UK before 1 January 2021, but only until 30 June 2021, and after then only if s/he has EU pre-settled status.
  • The family member of such a person above (EEA worker, etc).
  • A person who is a family member of a ‘relevant person of Northern Ireland’ provided that person from Northern Ireland they accompany is a worker, retained worker or self-employed person (or would be but for the fact that they are not an EEA national).

See the UC/HB regulations: UC 9(4)(a)-(c),(ca)-(cc),(d)-(g); HB 10(3B)(za)-(zf),(g),(h)(hh),(i); HB66+ 10(4A)(za)-(zf),(g),(h),(hh),(i).

EEA nationals who entered the UK before 1 January 2021

From 1 January 2021, EEA nationals (other than Irish citizens) and their family members are subject to immigration control and require leave to enter or remain in the UK. But an EEA national who entered the UK before 1 January 2021 (or a family member who accompanies them) can continue to use their EEA rights to reside to qualify for UC/HB/CTR as follows:

  • until s/he is granted EU settled status (at which point the rights are extinguished) (s1, Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020; SI 2020 No 1209, Reg 12(7), schedule 4 para 1);
  • until 30 June 2021, if s/he has not applied to the EU settlement scheme by then, after which s/he becomes an overstayer (SI 2020 No 1209, Reg 3); and
  • after the 30 June 2021 for as long as s/he has EU pre-settled status (SI 2020 No 1209 schedule 4 paras 1-4).

The rights to reside that EEA nationals and their family members can use from 1 January 2021 to qualify UC/HB/CTR are those described in regulations 2-16 of the EEA Regulations with some modifications (SI 2020 No 1309, schedule 4 paras 3(k),(l),(w)-(y), 4). The modified rules are described on pages for EEA workers, Other EEA nationals and EEA family members.

Any claimant relying on one of their preserved EEA rights/ EEA family member rights (other than as a worker etc) must also be habitually resident to be entitled to UC/HB/CTR (see the UC/HB regulations: UC 9(1),(2),(3); HB 10(1)-(3),(3A),(3AA); HB66+ 10(1)-(4),(4ZA)).

A person is not entitled to UC/HB/CTR if his/her only right to reside is:

  • the initial right of residence (for the first three months)
  • as a jobseeker
  • as the family member of a jobseeker; or
  • as a ‘Zambrano carer’ (the parent of a British child).

What is a ‘right to reside’?

What counts as a ‘right to reside’ is not defined in the regulations but is taken as having its general meaning in immigration law. It is not confined to former EU freedom of movement rights (including in situations where those rights are preserved). It has a broader meaning that includes the rights conferred on British citizens, Commonwealth citizens with the right of abode and those with indefinite leave, including those situations where the law allows a person with limited leave to make a claim see: Abdirahman v SSWP [2007] EWCA Civ 657 (at para 19).  But ‘temporary admission’ is not sufficient to amount to a right to reside: Yesiloz v LB Camden.

An EEA national with EU settled status therefore has a right to reside because settled status is a form of indefinite leave: see Immigration Rules Appendix EU. However, it does not include EU pre-settled status because UC/HB regulations expressly exclude it as being a qualifying right to reside (UC 9(3)(c); HB 10(3),(3AA); HB66+ 10(3),(4ZA)). This rule also applies to CTR in England and Wales.

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Background Topics

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

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