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What are the housing and benefit rights of British and Irish citizens?
This page looks at common housing problems faced by British and Irish citizens when accessing housing, homelessness services or housing benefit. The page on British and Irish citizens explains their general rights. Here we look at some potential problems with housing and housing benefit applications.
Proving nationality: housing and homeless applications
The 'right to rent' checks that apply in England for private rented housing do not yet apply in Scotland (but may be brought into force at some stage, and in Scotland will apply to many housing association tenancies too). So for the time being anyone can apply for such tenancies without documentation even if other members of their household are not British.
No specific documents are required to apply for an allocation of housing or homelessness assistance but the local authority may require evidence of identity and/or evidence of nationality where the application is from a mixed household.
Where the council has ‘reason to believe’ that an applicant for homelessness services is eligible and is unintentionally homeless, a duty to accommodate while further enquiries are made is triggered (s29 Housing (Scotland) Act 1987). The requirement for a ‘reason to believe’ is a lower test than ‘being satisfied’. There is no requirement whatsoever for an applicant to produce evidence of nationality. Once the applicant is in emergency housing, the authority must give the applicant reasonable time and assistance to provide any proofs of eligibility needed. The applicant must co-operate with the authority in this (for example, by giving permission for the authority to contact the Home Office if necessary, or by providing the details and information needed). The authority must always act reasonably, for example, in setting time limits for proofs to be provided, assisting the applicant to get those proofs, and in believing the applicant they are otherwise credible and there appears to be good reason for being unable to produce other proofs.
For those born before 1st January 1983, proof of birth in the UK is proof enough of citizenship. For those born in the UK after that date, proof of citizenship or settled status of either parent plus proof of birth in the UK should be enough. If the applicant is in receipt of benefits, the DWP may have copies of documentation provided for the claim.
British children or dependant adults with ‘Zambrano’ carers
A ‘Zambrano’ carer is a person from a non-EEA state whose residence is required to enable a child or dependant adult, who is an EEA national, to exercise their treaty rights. If a British or Irish child or dependant adult has a Zambrano carer there are more details here.
Housing and homelessness applications from mixed households
The eligibility criteria for a housing allocation from a local authority apply only to the applicant themselves. If the applicant is British or Irish and has no dependants then they are eligible for a housing allocation or homelessness assistance without further conditions. Different rules apply if the application is from a mixed household (i.e. the applicant is British/Irish but other members of his/her household are not eligible).
Passing the habitual residence test
British and Irish citizens who recently arrived in the UK may find that they are refused benefits because they fail the habitual residence test. People who fail the test are still entitled to advice and information to prevent or alleviate their homelessness. The test applies to the claimant/applicant only (and not their partner). But in the case of a claim for universal credit (but not HB or CTR) both members of a couple are usually joint claimants (and therefore both would have to be habitually resident). However, if only one of them is habitually resident, that person can claim UC as a single person (regulation 3(3)(c) of the Universal Credit Regulations 2012).
For more information on claims for UC/HB/CTR including: couples with mixed immigration status (e.g. only one member British); the requirement to provide a national insurance number and/or evidence of nationality (e.g. undocumented ‘Windrush’ cases) see the page on the law on UC, HB and CTR.
In practice the habitual residence test is only applied to those who have returned to live in the UK during the two-year period prior to their application/claim (usually by a filter question on the application/claim form). The habitual residence test does not apply if the applicant/claimant:
- is British returning to live in the UK after exercising their EU treaty rights to live and work in another member state (in which case documentary evidence such as a payslip should be sufficient) (Swaddling v Adjudication Officer: Advice for Decision Making Chapter C1 (Universal Credit), paragraph C1962; HB Guidance Manual part C4, Annex B paragraph 17)
- is Irish and has lived and worked in the UK (for the same reason above)
- has a right of abode or settled status and has been deported, expelled or removed to the UK from another country (UC regulation 9(4)(g), HB regulation 10(3B)(i); or
- for housing benefit only, is in receipt of one of the passport benefits, income-based JSA, income-related ESA, income support or state pension credit (HB regulation 10(3B)(k)-(l)).
In all other cases British/Irish citizens must show they are habitually resident on the facts. British citizens who have lived most of their life outside the UK may find the facts in the Olokunboro case helpful (for details, see the habitual residence test ).
