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 covers the whole of the UK

This page explains the law about eligibility for universal credit (UC), state pension credit (SPC) and housing benefit (HB) for migrants and new arrivals. On this page we refer to the benefit authority as the decision maker (DM).

For the law about council tax rebate (CTR) see the separate pages for England and Wales and for Scotland (which also covers rate rebates in Northern Ireland).

The requirement for a national insurance number

A person who claims UC/SPC/HB must provide their national insurance number (NINo) and that of their partner or provide the evidence and information for their NINo to be traced or one to be allocated. No benefit can be awarded until the NINo or the evidence and information is provided. This rule applies regardless of the claimant’s or partner’s immigration status and even if no extra benefit is paid in respect of them (e.g. when a member of a couple claims UC as a single person). There is one exception to this rule for couples in respect of SPC and HB. A NINo is not required for an ineligible partner who:

• requires leave but does not have it in couples when one member is ineligible (e.g. an overstayer or illegal entrant)
• is not habitually resident, and
• has not been allocated a NINo already.

This rule is replicated in the UC guidance. For HB, the guidance advises the DM to assign a 'dummy' NINo in these cases

When a NINo has been applied for, the test is whether the applicant has provided enough information and evidence of their identity to such a degree of confidence that one can properly be allocated. There is no specific pre-determined list of items of evidence for this (PHC v SSWP - see below). In these cases, the DM should consider whether the applicant is likely to be allocated one before refusing the claim (Bui v SSWP - see below).

A NINo is not required in UC or HB for a child or young person included in the claim and although this exemption is not replicated in SPC law, in practice the DM will not ask for one.

The law on eligibility for UC, SPC and HB

A person is not eligible for UC, SPC or HB if s/he:

• is subject to immigration control (the benefits definition)
• is not in Great Britain (or in Northern Ireland, not in Northern Ireland). For HB, the law says a person is not eligible if they are ‘a person from abroad’ – but this amounts to the same thing.

These exclusions apply to the claimant, but for UC couples are usually joint claimants and for SPC and for HB it is not necessarily safe to claim for a partner whose leave prohibits access to public funds. Neither is it safe to claim UC, SPC or HB for a child, for the same reason.

Who is treated as being ‘not in Great Britain’

A person is treated as not being in Great Britain (or for HB, is a ‘person from abroad’) if s/he is not habitually resident in the common travel area – although some categories of migrant/new arrival are exempt and so are entitled to benefit immediately on their arrival. This provision applies to all claimants whether they are subject to immigration control or not – including British Citizens.

The law goes on to say that a person cannot be habitually resident in the common travel area unless they have a right to reside there. But this provision only has a practical effect if that person has applied to the EU Settlement Scheme (EUSS) but does not yet have EU settled status – this is because anyone else who passes the immigration control test also has a right to reside.

Mixed eligibility households

Claiming for a household member who does not have access to public funds

Any person whose leave has a ‘no public funds’ condition, breaks that condition if they claim benefit or if another household member receives a higher award on their behalf (see below). This rule applies to a dependent child as well as an adult partner, unless the eligible partner claims benefit as a single person.

Claiming for a sponsored migrant where the sponsor has signed a maintenance undertaking also counts as public funds and breach of the terms of their leave unless one of the exceptions applies (five years residence, death of sponsors)

How the law works for claims made by couples

For UC, couples are joint claimants, so both members must be eligible. However, if only one member is eligible (for example, where a British Citizen has a non-EEA spouse), that person can claim UC as a single person, and the award is calculated using the single-person standard allowance.

A similar rule applies to SPC but in this case only one member is the claimant, and the ineligible partner is treated as not being part of their household (and so the single-person rate is awarded).

For HB, only one member of a couple is the claimant (the eligible partner) and the couple-rate personal allowance is used to calculate the award. However, getting the couple rate only usually results in an increased award (and therefore as receipt of public funds) if the claimant has excess income and not, for example, if the claimant receives SPC guarantee credit.

For UC, SPC and HB, if the ineligible partner has leave with access to public funds but is not habitually resident, being included in their partner’s claim does not cause problems for their immigration status. But for UC and SPC the award is paid at the single-person rate until the ineligible partner has established their habitual residence (usually after three months). For example, this happens to refugee partners following family reunion.

How the law works for claims that include a dependent child

For UC, SPC and HB, any dependent child (or young person aged 16-17 for whom child benefit could be paid) who normally ‘lives with’ the claimant is included in the claim. However, if the child’s leave prohibits access to public funds, they are breaching that condition and it could affect their right to remain in the UK. Professional immigration advice should be sought from an IAA registered adviser before making a claim (or if a claim is already in payment).

There is no requirement that a child or young person must be ‘habitually resident’ to be included in a claim. Therefore, provided the child is not breaching their leave the person responsible for them can receive benefit for them immediately on their arrival in the UK.

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 continue to apply). It has a broader meaning that includes the rights conferred on British citizens, Commonwealth citizens with the right of abode and any person with leave, provided they are complying with any conditions in it. Although it has a broad meaning it does not extend as far as someone who is merely lawfully present under a ‘grace and favour’ arrangement such as a person who is on immigration bail.

The right to reside and the EU Settlement Scheme

EU settled status and EU pre-settled status are a right to reside (both being a form of leave with access to public funds). But the law says that EU pre-settled status is not sufficient by itself unless the holder is the family member of a person from Northern Ireland. In any other case, a person with pre-settled status must also have the right to reside as an EEA worker, other EEA national or EEA family member to qualify for benefit. But even then, s/he is not entitled if his/her only right to reside is:

• leave to enter on an EUSS family permit
• s/he is an EEA jobseeker or the family member of an EEA jobseeker, or
• as the parent of a British child (a ‘Zambrano carer’).

When deciding if a person’s only right to reside is as an EEA jobseeker or a Zambrano carer his/her EU pre-settled status is disregarded.