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PART 2E+W+SProvisions affecting entitlement to housing benefit

Circumstances in which a person is or is not to be treated as occupying a dwelling as his homeE+W+S

7.—(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home—

(a)by himself or, if he is a member of a family, by himself and his family; or

(b)if he is polygamously married, by himself, his partners and any child or young person for whom he or any partner of his is responsible and who is a member of that same household,

and shall not be treated as occupying any other dwelling as his home.

(2) In determining whether a dwelling is the dwelling normally occupied as a person's home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain.

(3) Where a single claimant or a lone parent is a student, other than one to whom regulation 56(1) applies (circumstances in which certain students are treated as not liable to make payments in respect of a dwelling), or is on a training course and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he occupies for the purpose of attending his course of study or, his training course, or as the case may be, the dwelling which he occupies when not attending his course, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make such payments.

(4) Where a claimant has been required to move into temporary accommodation by reason of essential repairs being carried out to the dwelling normally occupied as his home, and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he normally occupied as his home or the temporary accommodation, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make payments.

(5) Where a person is required to reside in a dwelling which is a bail hostel or probation hostel approved by the Secretary of State under [F1section 13 of the Offender Management Act 2007] M1, he shall not be treated as occupying that dwelling as his home.

(6) Where a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only—

(a)for a period not exceeding 52 weeks in the case where he has left and remains absent from the former dwelling occupied as his home through fear of violence in that dwelling or by a former member of his family and—

(i)it is reasonable that [F2payments should be made (whether by way of housing benefit or universal credit)] in respect of both his former dwelling and his present dwelling occupied as the home; and

(ii)he intends to return to occupy the former dwelling as his home; or

(b)in the case of a couple or a member of a polygamous marriage, where he or one partner is a student, other than one to whom regulation 56(1) applies (circumstances in which certain students are treated as not liable to make payments in respect of a dwelling), or is on a training course and it is unavoidable that the partners should occupy two separate dwellings and reasonable that housing benefit should be paid in respect of both dwellings; or

(c)in the case where, because of the number of persons referred to in paragraph (1), they have been housed by a housing authority in two separate dwellings; or

(d)in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding 4 benefit weeks [F3from the date on which he moved] if he could not reasonably have avoided liability in respect of two dwellings; or

(e)in the case where a person—

(i)is treated by virtue of paragraph (8) as occupying a dwelling as his home (“the new dwelling”) and sub-paragraph (c)(i) of that paragraph applies; and

(ii)he has occupied another dwelling as his home on any day within the period of 4 weeks immediately preceding the date he moved to the new dwelling,

for a period not exceeding 4 benefit weeks immediately preceding the date on which he moved.

(7) Where—

(a)a person has moved into a dwelling for which he is not liable to make payments (“the new dwelling”); and

(b)immediately before that move, he was liable to make payments for the dwelling he previously occupied as his home (“the former dwelling”); and

(c)that liability continues after he has moved into the new dwelling,

he shall be treated as occupying the former dwelling as his home for a period not exceeding 4 benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling.

(8) [F4Where]—

(a)[F5a person] has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and

[F6(b)either—

(i)that person had claimed housing benefit before moving in and either no decision has yet been made on that claim or it has been refused but a further claim has been made or treated as made within 4 weeks of the date on which the claimant moved into the new dwelling occupied as the home; or

(ii)that person notified the move to the new dwelling as a change of circumstances under regulation 88 (duty to notify changes of circumstances) before the move, or the move to the new dwelling was otherwise notified before the move under that regulation; and]

(c)the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and—

(i)that delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family; or

(ii)the move was delayed pending [F7local welfare provision or] the outcome of an application under [F8Part 8] of the Act for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant's family is aged 5 or under or the claimant's applicable amount includes a premium under paragraph F9...12, 14 or 16 of Schedule 3 [F10or a component under paragraph 23 or 24 of that Schedule]; or

(iii)the claimant became liable to make payments in respect of the dwelling while he was a patient or in residential accommodation,

[F11the person shall be treated] as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.

(9) Where a person is treated by virtue of paragraph (8) as occupying a dwelling as his home in respect of the period before moving in, his claim for housing benefit in respect of that dwelling shall be treated as having been made on either—

(a)in the case of a claim in respect of which a decision has not yet been made the date that claim was or was treated as made in accordance with regulation 83 (time and manner in which claims are to be made); or

(b)in the case of a claim for housing benefit in respect of that dwelling which has been refused and a further claim was or was treated as made in accordance with Part 10 (claims) within 4 weeks of the date on which he moved into the dwelling, the date on which the claim was refused or was treated as made; or

(c)the date from which he is treated by virtue of paragraph (8) as occupying the dwelling as his home,

whichever of those dates is the later.

(10) Where a person to whom neither paragraph (6)(a) nor (16)(c)(x) applies—

(a)formerly occupied a dwelling but has left and remains absent from it through fear of violence—

(i)in the dwelling; or

(ii)by a person who was formerly a member of the family of the person first mentioned; and

(b)has a liability to make payments in respect of that dwelling which is unavoidable,

he shall be treated as occupying the dwelling as his home for a period not exceeding 4 benefit weeks.

(11) This paragraph shall apply to a person who enters residential accommodation—

(a)for the purpose of ascertaining whether the accommodation suits his needs; and

(b)with the intention of returning to the dwelling which is normally occupied by him as his home should, in the event, the residential accommodation prove not to suit his needs; and

(c)while the part of the dwelling which is normally occupied by him as his home is not let, or as the case may be, sublet.

(12) A person to whom paragraph (11) applies shall be treated as if he is occupying the dwelling he normally occupies as his home for a period not exceeding, subject to an overall limit of 52 weeks on the absence from that home, 13 weeks beginning from the first day he enters a residential accommodation.

(13) Subject to paragraph (17) a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first day of that absence from the home only if—

(a)he intends to return to occupy the dwelling as his home; and

(b)the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and

(c)the period of absence is unlikely to exceed 13 weeks.

(14) This paragraph applies to a person who is—

(a)detained in custody pending sentence upon conviction or under a sentence imposed by a court, other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 M2, or, in Scotland, under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 M3 or the Criminal Procedure (Scotland) Act 1995 M4; and

(b)on temporary release from such detention in accordance with Rules made under the provisions of the Prison Act 1952 M5 or the Prisons (Scotland) Act 1989 M6.

(15) Where paragraph (14) applies to a person, then, for any day when he is on temporary release—

(a)if such temporary release was immediately preceded by a period of temporary absence under paragraph (13) or (16), he shall be treated as if he continues to be absent from the dwelling, despite any occupation of the dwelling;

(b)for the purposes of paragraph (16)(c)(i), he shall be treated as if he remains in detention; and

(c)if he does not fall within sub-paragraph (a), he shall be treated as if he does not occupy his dwelling as his home despite any such occupation of the dwelling.

(16) This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home (“absence”), if—

(a)he intends to return to occupy the dwelling as his home; and

(b)while the part of the dwelling which is normally occupied by him has not been let, or as the case may be, sublet; and

(c)he is—

[F12(i)a person to whom paragraph (16A) applies;]

(ii)resident in a hospital or similar institution as a patient; or

(iii)undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation; or

(iv)following, in the United Kingdom or elsewhere, a training course; or

(v)undertaking medically approved care of a person residing in the United Kingdom or elsewhere; or

(vi)undertaking the care of a child whose parent or guardian is temporarily absent from the dwelling normally occupied by that parent or guardian for the purpose of receiving medically approved care or medical treatment; or

(vii)a person who is, in the United Kingdom or elsewhere, receiving medically approved care provided in accommodation other than residential accommodation; or

(viii)a student to whom paragraph (3) or (6)(b) does not apply; or

(ix)a person who is receiving care provided in residential accommodation other than a person to whom paragraph (11) applies; or

(x)a person who has left the dwelling he occupies as his home through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned, and to whom paragraph (6)(a) does not apply; and

(d)the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.

[F13(16A) This paragraph applies to a person (“P”) who is—

(a)detained in custody on remand pending trial;

(b)detained pending sentence upon conviction; or

(c)as a condition of bail required to reside—

(i)in a dwelling, other than a dwelling P occupies as P’s home; or

(ii)in premises approved under section 13 of the Offender Management Act 2007,

and who is not also detained in custody following sentence upon conviction.]

(17) A person to whom paragraph (16) applies shall be treated as occupying the dwelling he normally occupies at his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence.

(18) In this regulation—

“medically approved” means certified by a medical practitioner;

“patient” means a person who is undergoing medical or other treatment as an in-patient in any hospital or similar institution;

“residential accommodation” means accommodation which is provided in—

(a)

a care home;

(b)

an independent hospital;

(c)

an Abbeyfield Home; or

(d)

an establishment managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority;

“training course” means a course of training or instruction provided wholly or partly by or on behalf of or in pursuance of arrangements made with, or approved by or on behalf of, [F14Skills Development Scotland,] Scottish Enterprise, Highlands and Islands Enterprise, a government department or the Secretary of State.

Textual Amendments

F10Words in reg. 7(8)(c)(ii) added by SI 2008/1082 reg. 7A (as inserted) (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/2428), regs. 1(2), 28

Marginal Citations

Circumstances in which a person is to be treated as liable to make payments in respect of a dwellingE+W+S

8.—(1) Subject to regulation 9 (circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling), the following persons shall be treated as if they were liable to make payments in respect of a dwelling—

(a)the person who is liable to make those payments;

(b)a person who is a partner of the person to whom sub-paragraph (a) applies;

(c)a person who has to make the payments if he is to continue to live in the home because the person liable to make them is not doing so and either—

(i)he was formerly a partner of the person who is so liable; or

(ii)he is some other person whom it is reasonable to treat as liable to make the payments;

(d)a person whose liability to make such payments is waived by his landlord as reasonable compensation in return for works actually carried out by the tenant in carrying out reasonable repairs or redecoration which the landlord would otherwise have carried out or be required to carry out but this sub-paragraph shall apply only for a maximum of 8 benefit weeks in respect of any one waiver of liability;

(e)a person who is a partner of a student to whom regulation 56(1) (circumstances in which certain students are treated as not liable to make payments in respect of a dwelling) applies.

(2) A person shall be treated as liable to make a payment in respect of a dwelling for the whole of the period in, or in respect of, which the payment is to be made notwithstanding that the liability is discharged in whole or in part either before or during that period and, where the amount which a person is liable to pay in respect of a period is varied either during or after that period, he shall, subject to regulations 79 to 81 (dates of relevant changes of circumstances, weekly amounts and housing benefit for rent free periods), be treated as liable to pay the amount as so varied during the whole of that period.

Circumstances in which a person is to be treated as not liable to make payments in respect of a dwellingE+W+S

9.—(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where—

(a)the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis;

(b)his liability under the agreement is to a person who also resides in the dwelling and who is a close relative of his or of his partner;

(c)his liability under the agreement is—

(i)to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners; or

(ii)to his partner's former partner and is in respect of a dwelling which his partner and his partner's former partner occupied before they ceased to be partners;

(d)he is responsible, or his partner is responsible, for a child of the person to whom he is liable under the agreement;

(e)subject to paragraph (3), his liability under the agreement is to a company or a trustee of a trust of which—

(i)he or his partner;

(ii)his or his partner's close relative who resides with him; or

(iii)his or his partner's former partner;

is, in the case of a company, a director or an employee, or, in the case of a trust, a trustee or a beneficiary;

(f)his liability under the agreement is to a trustee of a trust of which his or his partner's child is a beneficiary;

(g)subject to paragraph (3), before the liability was created, he was a non-dependant of someone who resided, and continues to reside, in the dwelling;

(h)he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than five years have elapsed since he or, as the case may be, his partner, ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership;

[F15(ha)he or his partner—

(i)was a tenant under a long tenancy in respect of the dwelling; and

(ii)less than five years have elapsed since that tenancy ceased,

except where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing the tenancy;]

(i)his occupation, or his partner's occupation, of the dwelling is a condition of his or his partner's employment by the landlord;

(j)he is a member of, and is wholly maintained (disregarding any liability he may have to make payments in respect of the dwelling he occupies as his home) by, a religious order;

(k)he is in residential accommodation;

(l)in a case to which the preceding sub-paragraphs do not apply, the appropriate authority is satisfied that the liability was created to take advantage of the housing benefit scheme established under Part 7 of the Act.

(2) In determining whether a tenancy or other agreement pursuant to which a person occupies a dwelling is not on a commercial basis regard shall be had inter alia to whether the terms upon which the person occupies the dwelling include terms which are not enforceable at law.

(3) Sub-paragraphs (e) and (g) of paragraph (1) shall not apply in a case where the person satisfies the appropriate authority that the liability was not intended to be a means of taking advantage of the housing benefit scheme.

(4) In this regulation “residential accommodation” means accommodation which is provided in—

(a)a care home; or

(b)an independent hospital.

Textual Amendments

Persons from abroadE+W+S

10.—(1) A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable but this paragraph shall not have effect in respect of a person to whom and for a period to which regulation 10A (entitlement of a refugee to housing benefit) and Schedule A1 M7 (treatment of claims for housing benefit by refugees) apply.

[F16(2) In paragraph (1), “person from abroad” means, subject to the following provisions of this regulation, a person who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(3) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3A).

(3A) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

(a)regulation 13 of the Immigration (European Economic Area) Regulations 2006;

(b)regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is—

(i)a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or

(ii)a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

[F17(bb)regulation 15A(1) of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in regulation 15A(4A) of those Regulations;]

(c)Article 6 of Council Directive No.2004/38/EC; F18...

(d)[F19Article 39 of the Treaty establishing the European Community] [F19Article 45 of the Treaty on the Functioning of the European Union] (in a case where the person is seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland)[F20; or

(e)Article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen).]

(3B) A person is not a person from abroad if he is—

[F21(za)a qualified person for the purposes of regulation 6 of the Immigration (European Economic Area) Regulations 2006 as a worker or a self-employed person;

(zb)a family member of a person referred to in sub-paragraph (za) within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations;

(zc)a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of those Regulations;]

(g)a refugee;

(h)[F22a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is—

(i)discretionary leave to enter or remain in the United Kingdom F23...;

(ii)leave to remain under the Destitution Domestic Violence concession; or

(iii)leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;]

(hh)[F24a person who has humanitarian protection granted under those rules;]

(i)a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom;

F25(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(jj). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)in receipt of income supportF27[F28... or on an income-related employment and support allowance].]

[F29(l)in receipt of an income-based jobseeker’s allowance and has a right to reside other than a right to reside falling within paragraph (3A).]

F30(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In this regulation—

F32...

M8“refugee” means a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees .

Textual Amendments

Marginal Citations

M7See the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217), regulation 7 and Schedule 4, paragraph 2 for regulation 10A and Schedule A1 (claims by refugees).

M8Cmnd. 9171. See the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217), regulation 7 and Schedule 4, paragraph 2 for regulation 10A and Schedule 1A (claims by refugees).