PART 2Provisions affecting entitlement to housing benefit

Circumstances in which a person is or is not to be treated as occupying a dwelling as his home7

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 F9section 13 of the Offender Management Act 2007M1, 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 F14payments 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 F1from 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

F2Where—

a

F4a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and

F5b

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 F12local welfare provision or the outcome of an application under F6Part 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 F7...12, 14 or 16 of Schedule 3 F8or a component under paragraph F28... 24 of that Schedule F29or the claimant or the claimant’s partner is a member of the work-related activity group; or

iii

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

F3the 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 F21in Great Britain—

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 F22the residential accommodation.

F2313

Subject to paragraphs (13B) and (17), where a person is temporarily absent within Great Britain from his main dwelling, he shall be treated as occupying that dwelling as his home whilst he is so absent, subject to an overall limit of a period of 13 weeks beginning with the first day of the absence from the main dwelling, provided that—

a

the person intends to return to occupy the main dwelling as his home;

b

the part of the main dwelling normally occupied by the person has not been let or, as the case may be, sub-let; and

c

the period of the absence within Great Britain is unlikely to extend beyond the overall limit.

F1513A

The period of 13 weeks referred to in paragraph (13) shall run or continue to run during any period of absence from Great Britain.

13B

Where—

a

a person returns to Great Britain after a period of absence from Great Britain;

b

he has been absent from the main dwelling for less than 13 weeks beginning with the first day of absence from that dwelling; and

c

at the outset of, or during, the period of absence from Great Britain, he ceased to be treated as occupying the main dwelling as his home,

then, for any day that follows the period of absence from Great Britain and precedes his return to the main dwelling, he shall not be treated as occupying the main dwelling as his home under paragraph (13).

13C

This paragraph applies to a person who is temporarily absent from Great Britain and who occupied the main dwelling as his home, or was treated as occupying that dwelling as his home, immediately before the period of absence from Great Britain.

13D

Subject to paragraphs (13E), (13G), (17C) and (17D) a person to whom paragraph (13C) applies shall be treated as occupying the main dwelling as his home whilst he is absent from Great Britain, for a period not exceeding 4 weeks beginning with the first day of that absence from Great Britain, provided that—

a

the person intends to return to occupy the main dwelling as his home;

b

the part of the main dwelling normally occupied by the person has not been let or, as the case may be, sub-let; and

c

the period of absence outside Great Britain is unlikely to exceed 4 weeks.

13E

If the temporary absence from the main dwelling is in connection with the death of—

a

the person’s partner or a child or young person for whom the person or the person’s partner is responsible;

b

the person’s close relative;

c

the close relative of the person’s partner; or

d

the close relative of a child or young person for whom the person or the person’s partner is responsible,

then the period of 4 weeks in the opening words of paragraph (13D) may be extended by up to 4 further weeks if the relevant authority considers it unreasonable to expect the person to return to Great Britain within the first 4 weeks (and so that the reference in sub-paragraph (c) of that paragraph to a period of 4 weeks shall, where the period is extended, be taken as referring to the period as so extended).

13F

This paragraph applies to a person who is temporarily absent from Great Britain as a member of Her Majesty’s forces posted overseas, a mariner or a continental shelf worker, and who occupied the main dwelling as his home, or was treated as occupying that dwelling as his home, immediately before the period of absence from Great Britain.

13G

A person to whom paragraph (13F) applies shall be treated as occupying the main dwelling as his home whilst he is absent from Great Britain, for a period not exceeding 26 weeks beginning with the first day of that absence from Great Britain, provided that—

a

the person intends to return to occupy the main dwelling as his home;

b

the part of the main dwelling normally occupied by the person has not been let or, as the case may be, sub-let; and

c

the period of absence outside Great Britain is unlikely to exceed 26 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 F17main dwelling, if—

a

he intends to return to occupy the F24main dwelling as his home; and

b

while the part of the F25main dwelling which is normally occupied by him has not been let, or as the case may be, sublet; and

c

he is—

F13i

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 F31... , medical treatment, or medically approved convalescence, in accommodation other than residential accommodation; or

iv

following F32... , a training course; or

v

undertaking medically approved care of a person F33... ; 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 F30... , 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

F26d

in the case of—

i

absence within Great Britain, any period of absence from the dwelling is unlikely to extend beyond or, in exceptional circumstances is unlikely substantially to extend beyond, an overall limit of 52 weeks beginning with the first day of the absence from the dwelling;

ii

absence from Great Britain by a person to whom any of sub-paragraphs (c)(ii), (iii), (vii) or (x) apply, any period of absence from Great Britain is unlikely to exceed or, in exceptional circumstances is unlikely substantially to exceed, 26 weeks beginning with the first day of the absence from Great Britain; or

iii

absence from Great Britain by a person to whom paragraph (ii) of this sub-paragraph does not apply, any period of absence from Great Britain is unlikely to exceed or, in exceptional circumstances is unlikely substantially to exceed, 4 weeks beginning with the first day of absence from Great Britain.

F1116A

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.

F2717

Subject to paragraph (17B), a person to whom paragraph (16) applies who is absent within Great Britain, shall be treated as occupying the main dwelling as his home whilst he is so absent, subject to an overall limit of a period of 52 weeks beginning with the first day of the absence from the dwelling.

F1617A

The period of 52 weeks referred to in paragraph (17) shall run or continue to run during any period of absence from Great Britain.

17B

Where—

a

a person returns to Great Britain after a period of absence from Great Britain;

b

he has been absent from the main dwelling for less than 52 weeks beginning with the first day of absence from that dwelling; and

c

at the outset of, or during, the period of absence from Great Britain, he ceased to be treated as occupying the main dwelling as his home,

then, for any day that follows the period of absence from Great Britain and precedes his return to the main dwelling, he shall not be treated as occupying the main dwelling as his home under paragraph (17).

17C

A person to whom paragraph (16) applies who—

a

is a person described in any of sub-paragraphs (c)(ii), (iii), (vii) or (x) of that paragraph;

b

is temporarily absent from Great Britain; and

c

immediately before that period of temporary absence, occupied the main dwelling as his home or was treated as so occupying that dwelling,

shall be treated as occupying that dwelling as his home whilst he is absent from Great Britain, for a period not exceeding 26 weeks beginning with the first day of the absence from Great Britain.

17D

A person to whom paragraph (16) applies who—

a

is a person described in any of sub-paragraphs (c)(i), (iv), (v), (vi), (viii) or (ix) of that paragraph;

b

is temporarily absent from Great Britain; and

c

immediately before that period of temporary absence, occupied the main dwelling as his home or was treated as so occupying that dwelling,

shall be treated as occupying that dwelling as his home whilst he is absent from Great Britain, for a period not exceeding 4 weeks beginning with the first day of the absence from Great Britain.

18

In this regulation—

  • F18“continental shelf worker” means a person who is employed, whether under a contract of service or not, in a designated area or a prescribed area in connection with any activity mentioned in section 11(2) of the Petroleum Act 1998;

  • “designated area” means any area which may from time to time be designated by Order in Council under the Continental Shelf Act 1964 as an area within which the rights of the United Kingdom with respect to the seabed and subsoil and their natural resources may be exercised;

  • “main dwelling” means the dwelling that a person normally occupies as his home;

  • “mariner” means a person who is employed under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel, where—

    1. a

      the employment in that capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or mails carried by the ship or vessel; and

    2. b

      the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on its voyage;

  • “medically approved” means certified by a medical practitioner;

  • F19“member of Her Majesty’s forces posted overseas” means a person who is a member of the regular forces or the reserve forces (within the meaning of section 374 of the Armed Forces Act 2006), who is absent from the main dwelling because the person has been posted outside of Great Britain to perform the duties of a member of Her Majesty’s regular forces or reserve forces;

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

  • F20“prescribed area” means any area over which Norway or any member State (other than the United Kingdom) exercises sovereign rights for the purpose of exploring the seabed and subsoil and exploiting their natural resources, being an area outside the territorial seas of Norway or such member State, or any other area which is from time to time specified under section 10(8) of the Petroleum Act 1998;

  • “residential accommodation” means accommodation which is provided in—

    1. a

      a care home;

    2. b

      an independent hospital;

    3. c

      an Abbeyfield Home; or

    4. 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, F10Skills Development Scotland, Scottish Enterprise, Highlands and Islands Enterprise, a government department or the Secretary of State.