Guidance

A9/2021: The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2021

Updated 31 January 2022

Who should read

All Housing Benefit (HB) staff

Action

For information

Subject

The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2021

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

Extra copies of this circular and copies of previous circulars can be found at Housing Benefit for local authorities: adjudication circulars.

For queries about the:

• technical content of this circular, contact:
  

internationalaccessto.benefitpolicy@dwp.gov.uk

• distribution of this circular, contact:
  

lawelfare.correspondence@dwp.gov.uk

Introduction

1. This circular provides guidance about the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2021 (SI 2021/1034), which came into force on 15 September 2021, and apply to certain persons who have come to Great Britain (GB) from Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021.

2. SI 2021/1034 makes amendments to regulation 10 in the Housing Benefit Regulations 2006 (SI 2006/213) and the Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 (SI 2006/214) to add new categories of people who are exempt from the habitual residence element of the habitual residence test.

3. Persons who were granted leave to remain under one of the Home Office relocation and resettlement schemes and apply for a means tested benefit (including Universal Credit (UC) and Housing Benefit (HB)), will be exempted from satisfying the habitual residence test.

4. Persons who were granted leave to remain under one of the relocation and resettlement schemes, who apply for a disability or carers benefit, will be exempted from satisfying the habitual residence test and the Past Presence Test which apply to those benefits.

5. These regulations apply for any decision made on or after the 15 September 2021. Applications made and decided before 15 September 2021 should be considered in accordance with the relevant benefit legislation as it stood prior to SI 2021/1034 coming into force.

Background

6. The Home Office put in place schemes to relocate and resettle individuals from Afghanistan. In line with the policy intention that those arriving under these schemes should be able to access benefits immediately, the government has exempted certain cohorts from the requirement to meet the habitual residence test. In most cases, arrivals will receive help with their Housing costs through UC rather than HB.

7. For more information you can find the Afghanistan resettlement and Immigration policy statement on GOV.UK

8. Those in scope of SI 2021/1034 will be people who arrived in the UK under one of the following relocation and resettlement schemes established by the Home Office.

The Afghanistan Relocation and Assistance Policy (ARAP)

9. This scheme is for Afghans (and their family members) who worked alongside British Government officials in Afghanistan. The scheme opened in April 2021 and it is estimated that approximately 6,900 Afghans and their dependants have been evacuated so far, with 5,000 being evacuated between 15 and 29 August 2021. Under the scheme, individuals were initially granted ‘limited leave to enter’ with recourse to public funds. The government has announced that this will be automatically upgraded to ‘indefinite leave to enter or remain’.

The Afghanistan Locally Employed Staff Ex-Gratia Scheme

10. This scheme was announced in December 2012 and was set up to support locally employed staff who have worked for the British forces. This scheme is set to close in November 2022.

The Afghan Citizens’ Resettlement Scheme

11. This scheme will provide those put at risk by recent events in Afghanistan with a route to safety to the UK, including ethnic and religious minorities and LGBT+, given their particular vulnerability. The plan is to resettle up to 20,000 people at risk, including 5,000 in the first year. Initial arrivals under the scheme were granted six months discretionary ‘leave outside the Immigration Rules’, having arrived on evacuation flights. This will be upgraded to indefinite leave to remain. Future arrivals under the Afghan Citizens’ Resettlement Scheme will be granted indefinite leave to enter or remain.

Other people arriving from Afghanistan

12. SI 2021/1034 also exempts anyone not covered by one of the above schemes but who left Afghanistan, in connection with the collapse of the Afghan government which took place on 15 August 2021, from the habitual residence element of the habitual residence test for income-related benefits. This will include UK nationals who meet this exemption.

Initial support

13. People who have arrived in the UK under the schemes will receive weekly cash and rent support up to the day before the first UC or Pension Credit payment is due, in order to maintain continuity of support. They will also receive rent payments until they receive either the UC housing element or HB.

Access to HB

14. The majority of people covered by the schemes are Working Age and will be claiming UC. People will claim UC for their personal allowance until they become liable to pay rent when placed in accommodation by a local authority. If they are placed in temporary or supported accommodation they will be eligible to claim HB.

15. The Department for Work and Pensions has been working on the benefit processes and if any case should come across to an LA the claimant should have a National Insurance number or evidence that they have applied for one.

16. There may be some people who are of State Pension age who may apply for HB if they have a rental liability. If they are in receipt of Pension Credit, then there will be no need to consider if they are in the exempt group under one of the schemes mentioned above as they are exempt under existing regulations.

Benefit cap

17. The benefit cap will apply as normal.

LA IT systems

18. There are no changes required to LA IT systems as the changes made by SI 2021/1304 add new groups to the list of people who are exempt from the habitual residence element of the habitual residence test. LAs should record the outcome of any decision as normal.