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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), 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 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 Scotland the rules for CTR are set by the Scottish Government and approved by the Scottish Parliament – they apply the same way across every local authority in Scotland. Although the Scottish Government makes its own rules about eligibility, in practice the rules are very similar to the rules for HB and any differences are described as they arise.

In Scotland the legislation about CTR is contained in two sets of regulations – one for claimants who are of working age and another for claimants that are of state pension credit age. The regulations are as follows:

The appropriate CTR regulation that mirrors any HB rule (or diverges from it in the way described) follows at the end of the text to which it applies.

The requirement for a national insurance number for all claims

For UC and HB, 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 non-contributory social security benefits). An application for a number will be sufficient if the application is accompanied by all the evidence and information required to process it (section 1(1B)(b)).

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 the requirement also applies to the claimant’s partner with one limited exception: if one member of a couple is ineligible for HB 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. In these circumstances the DWP advises local authorities that they should assign a dummy number: HB Guidance Manual part D1 However, it is not necessarily safe to claim in these circumstances: see the next section on claims by couples.

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)). UC/HB 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).

The requirement to have a NINO or to have applied for one is absolute. No UC/HB can be awarded until the evidence and information required to establish this has 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 HB if a request to allocate one is refused: CH/1231/2004 and [2009] UKUT 74 (AAC).

Claims for CTR are officially known as ‘applications’ but hereafter for convenience we refer to ‘claim’ as including an application for CTR. In Scotland there is no requirement for a national insurance number to make a claim for CTR – although in practice if the claimant does not supply one it may slow down the claim.

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

For UC, couples make a joint claim, and 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 can be 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 taken into account.

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); CTS 82; CTS60+ 61.

What does the law say about dependent children?

There is no rule in UC/HB/CTR law to exclude dependant 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 housing allocations or 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 Scottish regulations require the authority to include in the household any child or young person who would be included in any claim for HB.

Regulations: UC 4; HB 20, 21; HB60+ 20,21; CTS 10,11; CTS60+ 10,11.

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

There are two different mechanisms 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 the equivalent provision is that the claimant must not be ‘a person from abroad’).

Whether a person is subject to immigration control for HB/CTR purposes is governed by section 115 of the Immigration and Asylum Act 1999 (pdf) 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 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. 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 (broadly this affects economically inactive EEA nationals); or
  • he/she is not habitually resident in the British Isles or the Republic of Ireland.

CTR Regulations: CTS 16; CTS60+ 16.

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: CTS 19; CTS60+ 19). The section sets its own internal definition of 'subject to immigration control' which is much more tightly drawn than the immigration definition used in housing law because, for example, it does not include EEA nationals.

Section 115(9) defines a person as being 'subject to immigration control' if he/she is not a national of an EEA state and 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 as a result of a maintenance undertaking
  • has leave to enter the UK only as a result of the fact that they are awaiting the outcome of an appeal against a decision to vary, or refuse to vary, limited leave.

Only those that fall within the s115(9) definition are excluded from UC/HB/CTR. Anyone who falls outside the definition and who is habitually resident (i.e. not a 'person from abroad') is entitled to UC/HB/CTR. For UC/HB/CTR purposes a person is not subject to immigration control if he/she is:

  • a British Citizen
  • a person who is a citizen of a commonwealth country with a 'right of abode'
  • a person who has indefinite leave to remain (also known as 'settled status')
  • a person who has been granted leave because of their refugee status
  • a person who has been granted humanitarian protection
  • a person who has discretionary leave (assuming, as is almost always the case, that their leave is not subject to a public funds condition)
  • a person who has been granted leave under the 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 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); CTS 16(5)(d)-(f); CTS60+ 16(5)(d)-(f).

In the case of the first three the claimant is usually habitually resident and is only likely to be excluded if they make a claim within the first few months after entering the UK after a prolonged period living abroad. But even if that person isn’t actually habitually resident they are treated as if they are if they entered  the UK as a result of their deportation, expulsion or removal from another country.

Regulations: HB 10(3B)(i); HB60+ 10(4A)(i); CTS 16(5)(g); CTS60+ 16(5)(g). 

A person who has been granted temporary admission is excluded from UC/HB/CTR because it is not a form of leave. 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 to be supported by a family member 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). Note that these exceptions override any exclusion from UC/HB/CTR that would otherwise arise from a 'no public funds' condition or as a result of an undertaking (a fact that in the case of Turkish or Macedonian nationals decision makers often appear to overlook [2015] UKUT 438 (AAC)).

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 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 the case of CTR the second exception applies (nationals of ECSMA/CESC states) but not the first (CTS 19(2), CTS60+ 19(2).

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); CTS 16(1),(2); CTS60+ 16(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 10(1)-(3); HB60+ 10(1)-(3)). Any kind of leave is sufficient including limited leave with a ‘no public funds’ condition: [2015] UKUT 438 (AAC). But temporary admission is not 'leave' (Yesiloz v LB Camden) and so the authority is likely to refuse benefit. However, the requirement for leave or a right to reside appears inconsistent with the terms of the ECSMA/CESC treaties which only require lawful presence (see Szoma above). People who are refused benefit because they only have temporary admission should seek specialist advice. 

Persons from abroad/not being in Great Britain

Regulations 9(1) and 10(1) of the UC and HB Regulations respectively applies 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 as to who is treated as  ‘not being in Great Britain’ are structured in the following way:

  1. the claimant is treated as not being in Great Britain if he/she is not habitually resident in the British Isles or the Republic of Ireland
  2. the claimant cannot be treated as habitually resident unless he/she has a right to reside in the British Isles or the Republic of Ireland (e.g. as a British citizen or with an EEA right to reside)
  3. certain categories of the right to reside are specifically excluded from conferring a right to UC/HB/CTR (broadly certain EEA nationals who are seeking work)
  4. claimant’s with certain kinds of leave to enter the UK or EEA rights to reside are treated as if they are habitually resident and so are entitled to UC/HB/CTR (broadly people granted leave on humanitarian grounds or EEA nationals in work)
  5. For HB/CTR only, certain claimants are exempt or have transitional protection from the right to reside or habitual residence tests (mainly those on a passport benefit)
  6. In any other case the claimant must have a right to reside and be actually habitually resident to get UC/HB/CTR.

Regulations: CTS 16(1)-(5); CTS60+ 16(1)-(5).

The overall result is that:

  • every claimant must possess a right to reside and be habitually resident (from 1, 2 and 6) to be entitled to UC/HB/CTR
  • certain claimants are exempt from both requirements (and so automatically entitled to UC/HB/CTR – see next section (from 4))
  • certain EEA rights to reside do not confer a right to UC/HB/CTR (from 3)
  • For HB/CTR some claimants are exempt from one or both of the tests via a passport benefit (from 5).

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

The following claimants are entitled to UC/HB/CTR by virtue of being exempt from the right to reside and habitual residence tests as described below:

  • 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, 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 (including a national of Croatia) who is:

Regulations: UC 9(4)(a)-(g); HB 10(3B)(za)-(zc)(g)-(l); HB60+ 10(4A)(za)-(zc),(g)-(k); CTS 16(5)(a)-(g); CTS60+ 16(5)(a)-(g).

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 and is dealt with in the next section. In the case of the last category (EEA nationals) claimants are entitled to UC/HB/CTR in every case without the need to prove they are also habitually resident.

Claimants who are in receipt of a passport benefit (HB/CTR)

For HB only, claimants in receipt of a passport benefit are defined as not persons from abroad and so are entitled (HB Regulations, 10(3B)(k); HB60+ 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 in the case of EEA jobseekers only if the claimant has some other right to reside (HB Regulations 10(3B)(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, 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), (2); HB Regulation 10(1)-(3)). This will include:

  1. A parent of a child in education provided that at since the child has lived here at least one of its parents has been an EEA worker.
  2. An EEA national (including a national of Croatia) who is:
    • a person who has acquired a right to reside permanently by qualifying through five years' residence
    • a student
    • a self-sufficient person
  3. Any other EEA national  or their family member with a right to reside except where that right arises from:
    • their right to reside during their first three months of stay in the UK; or 
    • the right to reside as an EEA jobseeker; or
    • except for a claim for CTR, a ‘Zambrano’ right (i.e. a non-EEA parent of a child that is a UK citizen).

(In other words the right to reside: as a jobseeker and during the first three-months, do not help the claimant qualify for UC/HB/CTR and the right to reside as a Zambrano carer does not help the claimant qualify for UC/HB).

Regulations: CTS 16(1)-(4) CTS60+ 16(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 UC/HB/CTR unless they possess some other right to reside (but in the case of a Zambrano carer they are entitled to claim CTR.

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