Guidance

A7/2023: The Social Security (Habitual Residence and Past Presence, and Capital Disregards) (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, and Capital Disregards) (Amendment) Regulations 2023

Guidance manual

The information in this circular does affect the content of the HB Guidance Manual. Please annotate this circular number against Chapter C4, paragraphs 4.64 – 4.88,  Chapter BW1, paragraph W1.180 and Chapter BP1, paragraphs P1.180 – P1.181.

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 Social Security (Habitual Residence and Past Presence, and Capital Disregards) (Amendment) Regulations 2023 (SI 2023/1144) which came into force on 27 October 2023.  

2. Statutory Instrument (SI) SI 2023/1144 makes amendments to 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).

Background

3. SI 2023/1144 amends the Habitual Residence Test (HRT) for those coming from Israel, the Occupied Palestinian Territories (OPTs) and Lebanon and also introduces a new capital disregard for payments made under the Victims of Overseas Terrorism Compensation Scheme.  

4. For the purposes of this guidance the OPTs are the West Bank, the Gaza Strip, East Jerusalem and the Golan Heights.

The Habitual Residence Test provisions

5. SI 2023/1144 inserts a new category to the list of persons who are exempt from having to satisfy the HRT for Housing Benefit (HB). The category covers those who have left Israel, the OPTs or Lebanon in connection with the violence in the region following the Hamas terrorist attack in Israel on 7 October 2023 and who were residing in Israel, the OPTs or Lebanon immediately before 7 October 2023. 

6. The existing list of persons exempted from having to satisfy HRT were amended in both SI 2006/213 and SI 2006/214 to make it clear that all those granted types of leave outside the Immigration Rules are exempted from the HRT for HB. 

7. The regulations only exempt individuals from the HRT and claimants will still need to satisfy the other benefit entitlement conditions and have recourse to public funds.

Amendments to Housing Benefit regulations

8. SI 2023/1144 amends Regulation 10 (person from abroad) in both SI 2006/213 and SI 2006/214 so that the following categories of persons are exempted from having to satisfy the factual part of the HRT: 

• 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 Israel, the OPTs or Lebanon immediately before 7 October 2023, and 
• they left Israel, the OPTs or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack.

9. People granted leave outside the Immigration Rules (with recourse to public funds) are already exempted from satisfying the factual habitual residence part of the HRT. 

10. These regulations should be taken into account for any decision made from 27 October 2023, including where the claim was received before 27 October 2023. Applications made, and decided, before 27 October 2023 should be considered in accordance with the relevant benefit legislation as it stood prior to the coming into force of these regulations.

New capital disregard

11. SI 2023/1144 introduces new capital disregards for any payments made under the Victims of Overseas Terrorism Compensation Scheme. For more information about the scheme see the Victims of Overseas Terrorism Compensation Scheme – Capital Disregard  

12. While the classification of the Hamas attack on Israel on 7 October 2023 has raised the need to disregard payments under the Victims of Overseas Terrorism Compensation Scheme as capital, the regulations cover any and all payments made under the scheme. There is no intention to differentiate between compensation payments made to victims of different terrorism attacks which are recognised under the compensation scheme. 

13. The following paragraphs give details of the amendments made to HB legislation.

Definitions

14. SI 2023/1144 inserts the following new definitions into Regulation 2 of SI 2006/213 and SI 2006/214:

Victims of Overseas Terrorism Compensation Scheme

15. ‘Victims of Overseas Terrorism Compensation Scheme’ means the scheme of that name established by the Ministry of Justice in 2012 under section 47 (Introductory) of the Crime and Security Act 2010.

Qualifying person

16. In the definition of qualifying person, a Victims of Overseas Terrorism Compensation Scheme payment is inserted so that prescribed persons that receive a payment from this scheme is added to the definition of a qualifying person.

Effect on capital

17. For the purposes of SI 2006/213 and SI 2006/214 any payment made under the Victims of Overseas Terrorism Compensation Scheme paid to: 

• a third party for the claimant or their partner, or 
• the claimant or their partner for a third party 

is not to be treated as capital.

Notional capital

18. For the purposes of SI 2006/213 any payment made under the Victims of Overseas Terrorism Compensation Scheme paid to: 

• a third party for the claimant or their partner, or 
• the claimant or their partner for a third party 

 is not to be treated as notional capital.

19. As SI 2006/214 doesn’t have a notional capital rule no amendments are required.

Income treated as capital

20. For the purposes of SI 2006/213 payments made under the Victims of Overseas Terrorism Compensation Scheme are to be disregarded as income treated as capital. 

21. No amendments are required for the purposes of SI 2006/214.

Non-dependant deductions

For the purposes of SI 2006/213 and SI 2006/214 payments made under the Victims of Overseas Terrorism Compensation Scheme to a non-dependant are to be disregarded when assessing the non-dependant’s income.