| Made - - - - |
2nd April 2014 |
| Laid before Parliament |
8th April 2014 |
| Coming into force - - |
31st May 2014 |
The Secretary of State for Work and Pensions makes the following
Regulations in exercise of the powers conferred by sections 123(1)(a)
and (d), 135(1) and (2), 137(1) and 175(1) and (3) of the Social
Security Contributions and Benefits Act 1992, sections 4(5) and (12),
35(1) and 36(2) of the Jobseekers Act 1995, section 115(3), (4) and
(7) of the Immigration and Asylum Act 1999, sections 1(5)(a), 17(1)
and 19(1) of the State Pension Credit Act 2002, sections 4(3), 24 and
25(2) and (3) of the Welfare Reform Act 2007 and sections 30, 40,
42(1), (2) and (3) of, and paragraph 7 of Schedule 1 to, the Welfare
Reform Act 2012.
In accordance with section 173(1)(b) of the Social Security
Administration Act 1992, the Secretary of State has obtained the
agreement of the Social Security Advisory Committee that proposals in
respect of these Regulations should not be referred to it.
In respect of provisions relating to housing benefit, the
Secretary of State has consulted with organisations appearing to him
to be representative of the authorities concerned.
Citation and Commencement
1. These Regulations may be cited as the Social Security
(Habitual Residence) (Amendment) Regulations 2014 and shall come into
force on 31st May 2014.
Amendment of the Income Support (General) Regulations 1987
2.—(1) In Regulation 21AA(4) of the Income Support
(General) Regulations 1987 (special cases: supplemental –
persons from abroad) for sub-paragraphs (a) – (f)
substitute—
“(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;”
Amendment of the Jobseeker’s Allowance Regulations
1996
3. In Regulation 85A(4) of the Jobseeker’s Allowance
Regulations 1996 (special cases: supplemental – persons from
abroad) for sub-paragraphs (a) – (f) substitute—
“(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;”.
Amendment of the State Pension Credit Regulations 2002
4. In Regulation 2(4) of the State Pension Credit
Regulations 2002 (persons not in Great Britain) for sub-paragraphs
(a) – (f) substitute—
“(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;”.
Amendment of the Housing Benefit Regulations 2006
5. In Regulation 10(3B) of the Housing Benefit Regulations
2006 (persons from abroad) for sub-paragraphs (a) – (f)
substitute—
“(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;”.
Amendment of the Housing Benefit (Persons who have attained the
qualifying age for state pension credit) Regulations 2006
6. In Regulation 10(4A) of the Housing Benefit (Persons who
have attained the qualifying age for state pension credit)
Regulations 2006 (persons from abroad) for sub-paragraphs (a) –
(f) substitute—
“(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;”.
Amendment of the Employment and Support Allowance Regulations
2008
7. In Regulation 70(4) of the Employment and Support
Allowance Regulations 2008 (special cases: supplemental –
persons from abroad) for sub-paragraphs (a) – (f)
substitute—
“(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;”.
Amendment of the Universal Credit Regulations 2013
8. In Regulation 92(1) of the Universal Credit Regulations
2013 (claimants subject to all work-related requirements – EEA
jobseekers) for sub-paragraph (b) substitute—
“(b) a person who is treated as a worker for the purposes
of regulation 6(1)(b) of the EEA Regulations by reason of
satisfying the conditions set out in regulation 6(2)(b) or
regulation 6(2)(ba) of those Regulations;”.
Signed by authority of the Secretary of State for Work and
Pensions
Esther McVey
Minister of State
Department for Work and Pensions
2nd April 2014
EXPLANATORY NOTE
(This note is not part of the
Regulation)
These Regulations amend the Income Support (General) Regulations
1987 (S.I. 1987/1967), the Jobseeker’s Allowance Regulations
1996 (S.I. 1996/207), the State Pension Credit Regulations 2002 (S.I.
2002/1792), the Housing Benefit Regulations 2006 (S.I. 2006/213), the
Housing Benefit (Persons who have attained the qualifying age for
state pension credit) Regulations 2006 (S.I. 2006/214) and the
Employment and Support Allowance Regulations 2008 (S.I. 2008/794)
(“the income-related benefit Regulations”).
The income-related benefit Regulations provide that a claimant is
ineligible for benefit where he or she is a “person from
abroad” or, in the case of state pension credit, a
“person not in Great Britain”. A person is a person from
abroad or a person not in Great Britain if he or she is not
habitually resident in the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland. No person shall be treated as
habitually resident without a relevant right to reside in the place
where he or she is habitually resident. However, certain categories
of people are exempt from this habitual residence test.
These Regulations amend some of the categories of person who are
exempt from the habitual residence test. They are made in consequence
of amendments made to the Immigration (European Economic Area)
Regulations 2006 (S.I. 2006/1003) by the Immigration (European
Economic Area) (Amendment) (No.2) Regulations 2013 (S.I. 2013/3032)
(together, “the Immigration Regulations”) which transpose
Directive 2004/38/EC on the right of citizens of the Union and their
family members to move and reside freely within the territory of the
Member States. These Regulations ensure consistency between the
income-related benefit Regulations and the Immigration
Regulations.
These Regulations also amend Regulation 92 of the Universal Credit
Regulations 2013 (S.I. 2013/376) in order to ensure consistency with
the Immigration Regulations.
A full impact assessment has not been produced for this instrument
as it has no impact on business or civil society organisations.
EXPLANATORY MEMORANDUM
1. This explanatory memorandum has been prepared by the
Department for Work and Pensions and is laid before Parliament by
Command of Her Majesty.
2. Purpose of the instrument
2.1 This instrument makes minor and technical amendments to a
number of income-related benefit regulations to provide consistency
in the way an EEA national’s right of residence is defined.
3. Matters of special interest to the
Joint Committee on Statutory Instruments
3.1 None
4. Legislative Context
4.1 Income-related benefit regulations contain a general rule that
claimants must have a right to reside in the UK, the Channel Islands,
the Isle of Man or the Republic of Ireland (the Common Travel Area)
and must be habitually resident to qualify for income-related
benefits. This is known as the Habitual Residence Test. This
instrument makes changes to a number of income-related benefit
regulations to refer to the Immigration (European Economic Area)
Regulations 2006 (SI 2006/1003) (“the Immigration (EEA)
Regulations”) rather than Directive 2004/38/EC to define the
legal right of residence.
4.2 This instrument also amends the Universal Credit Regulations
2013 (S.I. 2013/376) (“the Universal Credit Regulations”)
in order to ensure consistency with the Immigration (EEA)
Regulations.
5. Territorial Extent and
Application
5.1 This instrument applies to Great Britain.
6. European Convention on Human
Rights
6.1 As the instrument is subject to negative resolution procedure
and does not amend primary legislation, no statement is required.
7. Policy background
- What is being done and why
7.1 This instrument amends the following income-related benefit
regulations:
- Regulation 21AA(4) of the Income Support (General) Regulations
1987 (SI 1987/1967) Regulation 85A(4) of the Jobseeker’s
Allowance Regulations 1996 (SI 1996/207)
- Regulation 2(4) of the State Pension Credit Regulations 2002
(SI 2002/1792)
- Regulation 10(3B) of the Housing Benefit Regulations 2006 (SI
2006/213)
- Regulation 10(4A) of the Housing Benefit (Persons who have
attained the qualifying age for State Pension Credit) Regulations
2006 (SI 2006/214)
- Regulation 70(4) of the Employment and Support Allowance
Regulations 2008 (SI 2008/794)
7.2 Under these income-related benefit regulations a claimant who
is not habitually resident in the Common Travel Area is defined as a
“person from abroad”, and such a person is not able to
receive income-related benefits. In order to be treated as habitually
resident a claimant needs to have a legal right to reside in the
place where he or she is habitually resident.
7.3 Directive 2004/38/EC on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member State (“the Directive”) sets out the
qualifying rights to reside of EEA nationals. The Home Office have
transposed the Directive into UK law through the Immigration
(European Economic Area) Regulations 2006 (S.I. 2006/1003)
(“the Immigration EEA Regulations”).
7.4 To ensure consistency between the income-related benefit
regulations and the Immigration (EEA) Regulations, the income-related
benefit regulations are being amended to refer to the Immigration
(EEA) Regulations rather than the Directive to identify those EEA
nationals who are treated as habitually resident.
7.5 The effect of these amendments will also minimise the need to
make repeated changes to income-related benefit regulations whenever
changes are made to the Immigration (EEA) Regulations. For example,
the Home Office have recently made amendments to Regulation 6 of the
Immigration (EEA) Regulations by way of the Immigration (European
Economic Area) (Amendment) (No.2) Regulations 2013 (S.I. 2013/3032)
in order to restrict the extent to which a person who is
involuntarily unemployed may retain the status of
“worker” and also the length of time that a person can be
a jobseeker.
7.6 This instrument also amends regulation 92 of the Universal
Credit Regulations to ensure consistency with the Immigration (EEA)
Regulations.
7.7 Consolidation
"Informal consolidated text of instruments is available to
the public free of charge via ‘The Law Relating to Social
Security’ (Blue Volumes) on the Department for Work and
Pensions website at
http://www.dwp.gov.uk/publications/specialist-guides/lawvolumes/the-law-relating-to-social-security/
or the National Archive website legislation.gov.uk . An
explanation as to which instruments are maintained on each site is
available here.”
8. Consultation outcome
8.1 A formal consultation has not been carried out by the
Department for Work and Pensions on these Regulations. Consultation
was not considered necessary for these changes as they make minor and
technical amendments which are designed to provide consistency with
provisions in existing legislation.
8.2 The amending Regulations were subject to statutory formal
consideration by the Social Security Advisory Committee. The
Committee considered the amendments at its meeting on 30 January 2014
and decided it did not wish to have the regulations formally
referred.
9. Guidance
9.1 The income-related benefits procedural guidance will be
amended and further guidance will be provided to Decision Makers.
10. Impact
10.1 This instrument has no impact on business or civil society
organisations.
10.2 The impact on the public sector is negligible.
10.3 An impact assessment has not been produced for this
instrument as it has no impact on business or civil society
organisations.
11. Regulating small business
11.1 The legislation does not apply to small business.
12. Monitoring & review
12.1 The Government will monitor and evaluate the six month
time-limiting provision as part of its regular review of policies on
access to benefits by migrants.
13. Contact
Satish Parmar, at the Department for Work and Pensions Tel: 020
7340 4330 or email: satish.parmar@dwp.gsi.gov.uk,
can answer any queries regarding the instrument.