Skip to main content

CIH logo

Housing advisers

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

The law on universal credit (UC) and housing benefit (HB)

The law on UC/HB regarding the eligibility of migrants is a mixture of statute (mainly the Immigration and Asylum Act 1999) and regulations (mainly the Universal Credit Regulations 2013 and the Housing Benefit Regulations 2006). Universal credit and housing benefit are part of the social security system and the 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 ‘HB60+’ or ‘HB’ respectively in both cases, followed by the relevant regulation and paragraph. Eventually (starting sometime in 2019) all working-age claims for help with housing costs will be transferred to UC and only pension-age claimants will be able to claim HB.

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 Ministry of Housing, 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.

The law is in the prescribed requirements regulations which all councils must follow as part of their local scheme. They set the rules about migrants and recent arrivals, and also the financial assessment for all pension-age claims in England, and both pension-age and working-age claims in Wales. The default scheme regulations only apply if your council fails to make a local scheme, and in England only for the year 2013. But we mention them here because the majority of councils use them as the basis for their local scheme, with some modifications. The regulations are:

For ease of reference the law below relates to UC/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.

The requirement for a national insurance number for all claims

Sub-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 UC/HB (and most other social security benefits). 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 (UC/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 to provide a NINO always applies to the claimant, or for UC, the joint claimants (but not to the ineligible partner where the eligible member of a couple is claiming UC as a single person). For HB/CTR the requirement also applies to the claimant’s partner with 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: HB Guidance Manual part D1 (paragraphs D1.284-287). However, it is not necessarily safe to claim in these circumstances: see the next section on claims by couples.

UC/HB/CTR law does not require a NINO for any child or young person included in the claim.

Regulations: UC Claims and Payments Regulations, regulation 5; 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).

For UC/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)).

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 on UC, HB and 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 ways by which migrants and recent arrivals (see the law on entitlement) can be excluded from benefit apply only to the claimant (and not to their partner). The consequences for this work out somewhat differently for UC, compared with HB/CTR.

For UC, couples make a joint claim, so in this case both the claimant and their partner need to be eligible to get UC. However, if only one member is excluded (for example, a British Citizen with 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 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’ and 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.

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 UC/HB/CTR law to exclude dependent 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, in England, they could treat any income and capital of that child differently to HB (where it is ignored).

Regulations: UC 4; HB 20,21; HB60+ 20,21; CTPE 7,8; CTRE 7,8; CTPW 7,8; CTRW 7,8.

The law on entitlement to UC, HB and CTR for migrants and recent arrivals

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 a person will be subject to immigration control if they are a national of any state outside the EEA.

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. The test has two elements either of which can disqualify a person from benefit. The claimant is excluded from UC/HB/CTR if either:

  • he/she does not have a 'right to reside' in the British Isles or the Republic of Ireland; or
  • he/she is 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 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). (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 not the same as in immigration law for example, it does not apply to EEA nationals (regardless of their economic status).

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 recourse to 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 Citizen
  • is a person who is a citizen of a commonwealth country with a 'right of abode'
  • is an EEA national (no matter what their economic status is)
  • falls within one of the prescribed exceptions set out in regulations
  • has indefinite leave to remain (also known as '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 rule.

In the case of the last four categories the UC and HB Regulations state that they are exempt from the requirement to be 'present in Great Britain'/ habitually resident and so are entitled to UC/HB/CTR. (Regulations: UC 9(4)(d)-(f); 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)).

British and Commonwealth Citizens with the right of abode and people with settled status are only likely to be treated as not being ‘present in Great Britain/ habitually resident’ during the first few months after entering the UK after a prolonged period living abroad. But this this exclusion is waived if they returned to the UK as a result of their deportation, expulsion or removal from another country (so they are entitled to UC/HB/CTR immediately). (UC 9(4)(g); HB 10(3B)(i); HB60+ 10(4A)(i); CTPE 12(5)(g); CTRE 21(5)(g); CTPW 28(5)(g); CTRW 19(5)(g)).

A person who has been granted temporary admission is excluded from UC/HB/CTR because it is not a form of leave (Yesiloz v LB Camden). 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 is excluded from UC/HB/CTR because either the leave is subject to a 'no recourse to public funds' condition or (in the case of a family member) that leave was granted as a result of a maintenance undertaking.

However, s115(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 is partly replicated in the CTR regulations).

The Social Security Immigration and Asylum Regulations 2000 (pdf), Regulation 2(1), 1(A) and paragraphs 2 to 4 of the schedule, set out the prescribed exceptions for UC/HB claims 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).

In each case, the claimant must also be habitually resident before the claimant is entitled to UC/HB/CTR (UC 9(1), HB 10(1),(2); CTPE 12(1),(2); CTPW 28(1),(2); CTRW 19(1),(2)). But 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 (UC 9(1)-(2), HB regulation HB 10(1)-(3); HB60+ 10(1)-(3)). And if they do the effect of this provision is to override any 'no public funds' condition that would otherwise exclude them from UC/HB/CTR: a fact that decision makers often appear to overlook: [2015] UKUT 438 (AAC).  

But in the case of CTR, only the second exception (ECSMA/CESC nationals) applies (CTPE 13(1A); CTPW 29(2); CTRE 20(2)). 

Persons from abroad/not being in Great Britain

Regulations 9(1) and 10(1) 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 he/she:

  • 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 .
  • 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 exemptions from both requirements: ‘economically active’ EEA nationals (the self-employed, workers and ‘retained’ workers) and for HB/CTR, certain others in receipt of passport benefits.

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

Claimants who are exempt from the right to reside and habitual residence requirements

The following claimants are entitled to UC/HB/CTR because they are exempt from the right to reside and habitual residence requirements:

  • 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 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 EEA nationals claiming income-based JSA whose only right to reside is as a jobseeker.
  • An EEA national who is:

Regulations: UC 9(4)(a)-(g); HB 10(3B)(za)-(zc),(g)-(l); HB60+ 10(4A)(za)-(zc),(g)-(k); CTPE 12(5)(a)-(g),(i); 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 UC, HB and CTR. The third category (passport benefits) applies only to claims for HB/CTR, see the next section. In the case of the last category (EEA workers, etc.) claimants are entitled to UC/HB/CTR in every case without the need to prove they are also habitually resident.

Claimants in receipt of passport benefits (HB/CTR)

In England for HB only, or in Wales for HB/CTR, certain claimants in receipt of a passport benefit are defined as not being a person from abroad and so are entitled (HB 10(3B)(k); HB60+ 10(4A)(k); CTPW 28(5)(j); CTRW 19(5)(j)). The qualifying passport benefits are: income support, income-related employment and support allowance and, except in Wales for CTR, 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 10(3B)(l), CTPW 28(5)(l), CTRW 19(5)(l)).

However, income-based JSA continues to act as a passport benefit for HB 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).

For HB only, 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)).

All other claimants

All other claimants not covered by the above rules must have a right to reside and be actually habitually resident to be entitled to UC/HB/CTR (UC Regulation 9(1), (1A), (2); HB Regulation 10(1)-(3), (3A), (3AA)). This will include:

  1. A parent of a child in education provided that at some time since the child has lived here at least one of its parents has been an EEA worker.
  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 self-sufficent person.
  3. 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 reside as an EEA jobseeker; or
    • a ‘Zambrano’ right (i.e. a non-EEA parent of a child that is a UK citizen) and
    • for UC and HB only, pre-settled status granted under the EU Settlement Scheme.

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

Claimants in categories (1) and (2) (follow link for details) have a right to reside and so are entitled to UC/HB/CTR provided they are also habitually resident on the facts (which in most cases they will be).

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 in category (3) have a right to live and work in the UK but are not entitled to UC/HB/CTR unless they also possess some other right to reside.

Chartered Institute of Housing

Background Topics

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

Chartered Institute of Housing