[2023] UKUT 193 (AAC)

By section 131(1)(a) of the Act, the principal condition of entitlement to housing benefit is that the claimant should be “liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”.

It is not in dispute that, as between himself and his landlord, the claimant is liable to pay rent for his home or that his home is a “dwelling in Great Britain”.

However section 131(1)(a) is qualified by section 137(2)(i) of the Act, which gives the Secretary of State for Work and Pensions power to make regulations that “[treat] any person who is liable to make payments in respect of a dwelling as if he were not so liable”.

In other words, the rules of a housing benefit scheme may treat someone as not being legally liable to pay rent—and therefore not entitled to housing benefit—even though he is so liable under the law of landlord and tenant.

The Secretary of State has used that power to make regulation 56 of the Housing Benefit Regulations 2006 ("the Regulations"). Paragraph (1) of the regulation provides that “a full-time student shall be treated as if he were not liable to make payments in respect of a dwelling”.

The phrase “full-time student” is defined by regulation 53(1) as meaning “a person attending or undertaking a full-time course of study and includes a student on a sandwich course”. “Full-time course of study” is also defined by that regulation but, as it is not in dispute that the claimant was attending such a course, I need say nothing further about that definition.

As the claimant was attending a “full-time course of study”, he was a “full-time student” and, on the face of things, the rule in regulation 56(1) therefore excluded from entitlement to housing benefit.

However, that rule is subject to exceptions that are set out in regulation 56(2) under which regulation 56(1) does not apply to full-time students: (Footnote: ²)

who are receiving income support, income-based jobseeker’s allowance or income-related employment and support allowance;

who are receiving universal credit, except where the award of universal credit includes the housing costs element;

who are lone parents;

whose award of HB would—but for regulation 56(1)—include the disability premium or severe disability premium;