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Households with eligible and ineligible members

This content applies to England

A look at the situation where a household contains both eligible and ineligible members, with an explanation of what happens if there is a change of circumstances in a household.

Where one member of a household is not eligible for housing assistance, another member may be able to apply instead. This could be the case when, for example, someone with settled status brings a spouse or other family member into the country on condition that s/he has no recourse to public funds.

Persons subject to immigration control

Where the applicant is a person subject to immigration control who is eligible for assistance under Part 7 of the Housing Act 1996 (for example a person granted refugee status or indefinite leave to remain or humanitarian protection),[1] any dependant of that applicant who is a person from abroad who is ineligible for assistance will be disregarded in determining whether the applicant has priority need or is homeless. [2]

For more information about priority need for homeless applicants with ineligible children see the page Households with dependent children; see the page Overview of legal definition for information on mixed eligibility households in terms of homelessness.

It is not unlawful discrimination within the meaning of Article 14 of the European Convention on Human Rights (ECHR) to treat an applicant who is a British citizen, a Commonwealth citizen with a right of abode in the UK or an EEA national with a right to reside in the UK differently in regard to determining priority need or homelessness when they have a child who is a person from abroad who is ineligible for assistance (see 'Restricted cases' below).[3]

For information on which persons who are subject to immigration control are eligible for assistance see the page Eligible for assistance.

Restricted cases

Prior to 2 March 2009, no applicant could be found to be in priority need by virtue of a child who was an ineligible person from abroad. Following the Court of Appeal decision that this provision was incompatible with Article 14 of the ECHR,[4] the Housing Act 1996 was amended so that the provision no longer applies to applicants who are not subject to immigration control. A British citizen, a Commonwealth citizen with a right of abode in the UK or an EEA national with a right to reside in the UK can be in priority need (or homeless) as a result of an ineligible household member.[5] The ineligible household member is referred to as a 'restricted person', and there are specific rules regarding discharge of the homeless duty in such 'restricted cases'. See the page Ending main housing duty for further information.

A 'restricted person' is a person:[6]

  • who is not eligible for assistance under Part VII Housing Act 1996
  • who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996

    and

  • either:

    • does not have leave to enter or remain in the UK, or
    • whose leave to enter or remain in the UK is subject to a condition to maintain and accommodate himself, and any dependants, without recourse to public funds.

Changes of circumstance

Immigration status may change over time. For example, if a person subject to immigration control is eligible for assistance as a result of having discretionary leave that ends and is not replaced by further leave, s/he will cease to be eligible for assistance, and the housing authority may make a decision to discharge the homelessness duty.

People deemed to be ineligible for the purposes of homelessness assistance may become eligible at some point in the future, for example, if they:

  • are a returning UK national who acquires habitual residence over time
  • cease to be an economically inactive EEA/EU national after obtaining work
  • marry or live with UK/EU/EEA nationals (this applies to 'third country' nationals, ie nationals of countries outside the EEA/EU or UK)
  • obtain refugee status, humanitarian protection or discretionary leave
  • are resident in the UK subject to a sponsorship undertaking and their sponsor dies
  • attain five years residence in the UK after being on a sponsorship agreement
  • get settled status.

Mixed eligibility households and allocations

It should be noted that where an eligible applicant's household includes family members or dependent children who are not eligible for assistance, they cannot be excluded from an application for an allocation under Part 6. It is only the immigration status of the main applicant that is relevant for allocation purposes.[7]

Find details of local authorities on Gov.uk.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Contact Shelter Cymru for more information about the law in Wales.

[1] reg 5 Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294.

[2] s.185(4) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

[3] Bah v UK [2011] EHRC 1448, App no. 56328/07.

[4] R v Westminster CC, ex p Morris; R v Lambeth LBC ex p Badu [2005] EWCA Civ 1184.

[5] s.185(4) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

[6] s.184(7) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

[7] R v Tower Hamlets LBC ex parte Kimvono (2001) 33 H.L.R 78.

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