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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.

Contents:

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).

The law on UC and HB

The law on UC/SPC/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 ‘HBP’ or ‘HBW’ respectively in both cases, followed by the relevant regulation and paragraph. Northern Ireland has its own social security legislation but its government is required to maintain a UK wide social security system so the Acts, orders and regulations say the same thing as the equivalent law for Great Britian.

Since December 2018, anyone who is working age who wants help with housing costs must claim universal credit, with the exception only of persons who live in temporary or supported accommodation. Existing HB awards claimed before then by a person on income-related employment and support allowance can continue but all of these are to be transferred (‘migrated’) to UC by April 2026 (all other kinds of working-age claims have already been migrated). Starting sometime in 2026 pension-age claimants will get help with their rent by claiming state pension credit (SPC) instead of HB.

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

When a person claims UC or SPC they must provide their national insurance number (NINO) or have applied for one (Social Security Administration Act 1992 section 1). For couples it applies to both – unless they are claiming UC as a single person (see below). If the claimant or their partner have applied for a NINO, the DWP should consider whether they are likely to be allocated one before refusing the claim (R (Bui) v SSWP [2023] EWCA Civ 566).

The same requirement applies when a person claims HB. In the case of a couple claiming SPC or HB where only one is eligible it also 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. A NINO is not required for a dependent child in UC, SPC or HB – however this does not mean it is necessarily safe to claim if the child is subject to immigration control (see below).

Claiming for a household member who has leave without access to public funds

A person, including a child whose leave has a ‘no public funds’ condition, breaks the terms of their leave if they, their partner or the adult is awarded benefit on their behalf (see below). But even in situations where a claim made by another person does not count as public funds (such as a claim for UC made by an eligible partner as a single person) it may still be ill-advised to claim. When an application is made for leave to be renewed, the Home Office may decide the sponsoring adult is unable to support the applicant and refuse leave.

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 ineligible (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). SPC is also awarded at the single-person rate if only one member is eligible, the only difference is that for SPC only one partner in a couple is the claimant (UC Regulations, Regulation 3; SPC Regulations, Regulation 2 and Regulation 5). For HB/CTR only one member is the claimant so only that person needs to be eligible, and the award includes the couple-rate personal allowance.

Where a partner is ineligible due to a ‘no public funds’ condition the fact that UC/SPC is awarded as single person to the eligible partner ensures the ineligible partner does not receive public funds and break the terms of their leave (Immigration Rules, Rule 6.2 - "public funds"). But for HB/CTR if the claimant receives a higher award due to the couple-rate personal allowance, the ineligible partner is counted as being in receipt of public funds. However, claiming as a couple only usually increases the award if the claimant has excess income, and not, for example, if the claimant gets guarantee credit.   

What does the law say about dependent children?

In UC/HB/CTR law any dependent child (or young person aged 16-17 for whom child benefit could be paid) who normally ‘resides with’ the claimant is included as part of the claimant's household, regardless of the child’s immigration status (UC 4; HBW 20, 21; HBP 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).

However,  if that child/young person has leave with a ‘no public funds’ condition, the increased award counts as public funds and could result in them losing their right to live in the UK. Any child/young person who is an illegal entrant or an overstayer would also be at risk. Professional immigration advice should be sought from an IAA registered adviser before making a claim.

The law on entitlement to UC, HB and CTR

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

  • as a person subject to immigration control
  • as a person who:
    • in Scotland, is not present in Great Britain (or treated as not being present in Great Britain), or
    • in Northern Ireland, is not present in Northern Ireland (or treated as being present in Northern Ireland).

In HB law, this requirement is referred to as not being ‘a person from abroad’.

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, SPC 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(6)) but transitional arrangements apply to EEA nationals and their family members who have applied to the EU Settlement Scheme until their application is decided.

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.

A person with limited leave is only excluded if their leave has a ‘no public funds’ condition which is the case for the most common kinds of limited leave (such as leave given to a work permit holder or a student). Whereas limited leave granted for humanitarian reasons (e.g. asylum, human trafficking) is often granted with access to public funds.

A person is not subject to immigration control if s/he:

Persons with limited leave who are not subject to immigration control

The following kinds of limited leave are granted with access to public funds and therefore the holder is not a person who is ‘subject to 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' prescribed by regulations are not excluded from UC/SPC/HB (and a similar rule replicates this in the CTR regulations). These are described in the Social Security Immigration and Asylum Regulations 2000, (in Great Britain, SI 2000/636, Regulation 2, in Northern Ireland, SI 2000/71, Regulation 2), but the only exceptions are:

  • a person who is the subject of a sponsorship maintenance undertaking who has been resident in the UK for five years (beginning on the date that person entered the UK or the date the undertaking was signed, whichever is later);
  • a person who is the subject of a maintenance undertaking where all his/her sponsors have died; or
  • a person who is a national of a ECSMA or ESC member state who has any kind of leave – including leave with a ‘no public funds’ condition - but only if:
    • the claim is for council tax rebate, or
    • the claim is for universal credit and was made before 1 January 2021, or
    • the claim is for housing benefit and/or state pension credit and was made before 3 May 2022.

Awards made under this provision can continue until entitlement ends (SI 2020/1505, Reg 1(2), SI 2022/449 Reg 1(3) ).

Persons from abroad/not being in Great Britain/Northern Ireland

A person who is not in Great Britain/Northern Ireland is not eligible for UC/SPC (Welfare Reform Act, section 4, State Pension Credit Act, section 1). For HB, a ‘person from abroad’ is treated as not being liable for rent (Social Security Contributions and Benefits Act, section 137(2)(i)). The rules about who is treated as being not in GB/NI or as a ‘person from abroad’ are set out in regulation (UC Regulation 9; SPC Regulation 2; HBW Regulation 10; HBP Regulation 10). These provisions apply to all claimants whether or not they are subject to immigration control - including British Citizens.

The regulations treat a person as ‘not being in Great Britain/Northern Ireland’ (or for HB/CTR as a person from abroad) 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).

When these questions are decided each condition is treated as part of a two-stage habitual residence test with the latter (right to reside) being determined first and the former only being considered if the right to reside is satisfied.

Claimants who are exempt from the habitual residence test

The following claimants are entitled to UC/SPC/HB/CTR because they are exempt from both parts of the habitual residence test:

  • A person who has been granted limited leave under one of the provisions (a) to (i) above.
  • A person who is a British citizen, Irish citizen or a Commonwealth citizen with the right of abode who was residing in Ukraine, Sudan, Israel, Palestine or the Lebanon immediately the start of the escalating violence and who left for that reason (see above).
  • A person of any nationality (Afghan, British, third country) who does not fall within one of the Afghan resettlement programmes (see above) in connection with the collapse of the Afghan government in 2021.
  • A British citizen or other person with settled status who has entered the UK because of their deportation, expulsion or removal from another country.
  • For HB/CTR, a person in receipt of income-related employment and support allowance or state pension credit.
  • An EEA national who has EU pre-settled status and who is a worker/self-employed person (including a retained, retired or frontier worker)(SI 2020/1309 sch 4 paras 1-4).
  • An EEA national who made an application to the EU Settlement Scheme on or before 30 June 2021 (or whose late application has been accepted) but which has not yet been finally determined and who is a worker/self-employed person (SI 2020/1209 Regs. 4 and 11).
  • The family member of an EEA worker/self-employed person etc., who has EU settled status or whose application to the EU Settlement Scheme has not yet been finally determined.
  • A person who has EU pre-settled status as the family member of a ‘relevant person of Northern Ireland’ provided that the 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).

Other EU Settlement Scheme applicants who are entitled to benefit

Any other person who is not exempt from the habitual residence test is entitled to UC/SPC/HB if:

The EEA rights to reside that applied immediately before 1 January 2021 continue to apply for people with pre-settled status, SI 2020/1309, sch 4 paras 1-4; or for EUSS applicants whose claim for EU settled status has not yet been decided SI 2020/1209, Regs. 4 and 11). However, a right to reside arising from EU pre-settled status or from an EUSS family permit is disregarded, unless:

  • counting your EU pre-settled status is the only way you can ‘live in dignified conditions’ (SSWP v AT [2023] EWCA Civ 1307)
  • the EUSS permit holder has separated from the partner they accompany due to domestic abuse in circumstances that would otherwise allow a non-EEA national to apply for the migrant victims of domestic abuse concession (GA v SSWP (UC) [2024] UKUT 380 (AAC)) or
  • the EUSS family permit was granted between 1 January and 30 June 2021 to an EU Settlement Scheme applicant who has a derivative right to reside (i.e. a person with Ibrahim/Teixeira or Chen rights).

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 EU settled status), 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’ or immigration bail is not sufficient to amount to a right to reside: Yesiloz v LB Camden.

Chartered Institute of Housing website Metropolitan Thames Valley website

Background Topics

A housing practitioners' guide to integrating people seeking protection and refugees

  • A housing practitioners’ guide to integrating people seeking protection and refugees - 3rd edition July 2021
Published by the Scottish Refugee Council with support from CIH Scotland

Related topics

Chartered Institute of Housing website Metropolitan Thames Valley website

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