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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).

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. Eventually (starting sometime in 2020) 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.

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 does not count as public funds and so the ineligible partner does not 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 different 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. (CTS 19; CTS60+ 19)

Whether a person is treated as not being in Great Britain (or for HB, 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.

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. 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 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 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' or habitually resident and so are entitled to UC/HB/CTR (Regulations: UC 9(4)(d)-(f); HB 10(3B)(g)-(hh); HB66+ 10(4A)(g)-(hh)).

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 exclusion is waived if they returned to the UK because 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); HB66+ 10(4A)(i)).

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) is excluded from UC/HB/CTR because it will include a 'no public funds' condition, or in the case of a family member, because it 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, Regulation 2(1),(1A) 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 a state that has ratified either the ECSMA or CESC treaties who is ‘lawfully present’ in the United Kingdom. (These exceptions allow the government to take account of treaties that give reciprocal benefit rights to UK citizens in countries outside the EU or to disapply the rule where it is contrary to intended policy. The only member states outside the EEA that have ratified at least one of these treaties are North Macedonia and Turkey.)

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); HB66+ 10(1),(2). But in the case of the second category (a person who is a national of North Macedonia or Turkey), s/he must also have either a right to reside as an EEA family member or have some form of leave to be entitled to UC/HB. Temporary admission is not sufficient as it does not amount to a right to reside: Yesiloz v LB Camden (and so s/he is re-excluded as not being in Great Britain). But if a person does have leave 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).

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:

  • 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 mainly: ‘economically active’ EEA nationals (the self-employed, workers and ‘retained’ workers) and for HB/CTR, persons in receipt of a passport benefit and certain others.

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 result of their deportation, expulsion or removal from another country.
  • For HB/CTR, a person in receipt of certain passport benefits.
  • An EEA national who is:
  • A person who is the family member or former family member of an EEA national who has acquired a permanent right to reside as a result of the death or retirement of the family member s/he accompanied (EEA Regulations, Regulations 5 and 15(1)(d),(e)).

UC 9(4)(a)-(g); HB 10(3B)(za)-(zc),(g),(h)(hh),(i); HB66+ 10(4A)(za)-(zc),(g),(h),(hh),(i) .

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 two categories (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 a passport benefit (HB/CTR)

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); HB66+ 10(4A)(k)). 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 only if the claimant has a right to reside other than as a jobseeker (HB 10(3B)(l)), for example if s/he has a permanent right to reside under the five-year rule.

All other claimants

All other claimants not covered by the above rules must have a qualifying right to reside and actually be habitually resident to be entitled to UC/HB/CTR (UC 9(1),(2),(3); HB 10(1)-(3),(3A),(3AA); HB66+ 10(1)-(4),(4ZA)).

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:

3. A person who is the family member of a person in (2) above.

4. Any other EEA national or their family member with a right to reside except where that right arises from one or more of the following non-qualifying rights:

    • the right to reside during the first three months of his/her stay in the UK
    • the right to reside as an EEA jobseeker
    • a ‘Zambrano’ right (i.e. a non-EEA parent of a child that is a UK citizen); or/ and
    • for UC/HB, pre-settled status granted under the EU Settlement Scheme if his/her only other right to reside is one or more of the above non-qualifying rights (i.e. three months, jobseeker, Zambrano carer).

A person in category (1), (2) or (3) (follow appropriate link above for details) has a right to reside and so is entitled to UC/HB/CTR provided s/he is also habitually resident on the facts (which in most cases they will be).

A person in category (4) has a right to live and work in the UK but is not entitled to UC/HB/CTR unless s/he also possesses some other qualifying right to reside and is habitually resident.

What is a ‘right to reside’?

What counts as a ‘right to reside’ is not defined in the regulations – so it must be taken as having its ordinary meaning. It is not confined to EU freedom of movement rights or those set out in the EEA regulations; it has a broader meaning that includes the rights conferred on British citizens, Commonwealth citizens with the right of abode and those with indefinite or limited leave, etc. See: Abdirahman v SSWP [2007] EWCA Civ 657 (at para 19). Therefore an EEA national with Settled Status who is a jobseeker qualifies because Settled Status is a form of indefinite leave: see Immigration Rules Appendix EU.

Background Topics

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

A Housing Practitioners' Guide to Integrating Asylum Seekers & Refugees

A Housing Practitioners Guide to Integrating Asylum Seekers and Refugees

Published by the Scottish Refugee Council with support from CIH Scotland

Chartered Institute of Housing Scotland