Guidance

A6/2023: The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2023

Updated 4 January 2024

Who should read

All Housing Benefit (HB) staff

Action

For information

Subject

The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2023

Guidance manual

The information in this circular is relevant to Chapter C4, paragraphs 4.64 to 4.88 of the HB Guidance Manual covering actual habitual residence.

Queries

You can get extra copies of this circular/copies of previous circulars

For queries about the technical content of this circular, contact: housing.policyenquiries@dwp.gov.uk

If you need to ask about the distribution of this circular, contact: lawelfare.correspondence@dwp.gov.uk

Crown Copyright 2023
Recipients may freely reproduce this circular.

Introduction

1. This circular provides guidance on the new regulations amending the habitual residence test for those coming from Sudan and the impact on Housing Benefit (HB).

New legislation

2. DWP introduced legislation which, with effect from 15 May 2023, inserts a category to the list of persons who are exempt from having to satisfy the HRT for HB. The category covers those who have left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan, and who were residing in Sudan before 15 April 2023.

3. The existing list of persons exempted from having to satisfy the habitual residence test were amended in both the Housing Benefit Regulations 2006 and the Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 to make it clear that all those granted types of leave outside the Immigration Rules are exempted from the habitual residence test requirement for HB.

4. The regulations only exempt individuals from the residency tests (as detailed in paragraph 7) and claimants will still need to satisfy the other benefit entitlement conditions and have recourse to public funds.

5. These regulations should be taken into account for any decision made from the 15 May 2023, including where the claim was received before 15 May 2023. Applications made, and decided, before 15 May 2023 should be considered in accordance with the relevant benefit legislation as it stood prior to the coming in force of these regulations.

Impact on HB

6. To be entitled to HB a claimant needs to show that they are not “a person treated as not being in Great Britain”, which means they must have a legal right to reside and be actually habitually resident in the Common Travel Area. For HB, the persons covered by these regulations will be exempt from the factual part of the habitual residence test. Individuals will still need to evidence that they are not a person subject to immigration control to be entitled to HB.

7. These regulations will exempt the following categories of persons from having to satisfy the HRT for HB:

• Those with pre-existing right of abode in the UK, including British nationals
• Those not required to hold leave to enter or remain in the UK (Irish nationals)
• Those granted leave under the Immigration Rules (as long as they have recourse to public funds)

providing they meet the following criteria:

• They were residing in Sudan before 15 April 2023, and
• They left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan

Note: For HB, those granted Leave Outside the Immigration Rules (with recourse to public funds) are already exempted from satisfying the actual habitual residence part of the habitual residence test.