If you've failed the habitual residence test
If you're struggling to pay for food, you could get help from a foodbank or other crisis support.
Your local council might also be able to help you. They might cover essential living costs or find you somewhere to live. Find your local council on GOV.UK.
You won't be able to claim benefits or get a council home if you failed the habitual residence test.
You can stay in the UK and your house as long as you have pre-settled or settled status from the EU Settlement Scheme (EUSS).
If you're waiting for a decision about pre-settled or settled status
You can stay in the UK and your house if both of the following apply:
you applied to EUSS before 30 June 2021
you had a right to reside on 31 December 2020 - check if you had a right to reside
If you’ve lived in the UK for 5 years or more
You can make a late application for settled status to the EU Settlement Scheme if you have a good reason for missing the deadline of 30 June 2021. You can find out more about staying in the UK if you’re from the EU.
If you think you’ll need extra support to make a late application you can contact Citizens Advice Scotland’s free EU Citizens Support Service.
If you’ve lived in the UK for less than 5 years
If you’ve failed the habitual residence test and think the decision is wrong, you can make a new claim or challenge it. You should try to provide more evidence to support your new claim or challenge the decision.
It's usually best to make a new benefits claim. You can make a new claim whether you challenge the decision or not and it might mean you get benefits sooner.
If you’re challenging a Universal Credit decision and you want to make a new claim
When you make a new claim, letters, documents and messages will normally disappear from your Universal Credit online account.
You might need this information to challenge the original decision. You should keep a record of what’s on the online account before you make a new claim - for example you can:
- take screenshots
- download documents
- copy and paste messages
Check why you've failed the habitual residence test
You'll get a letter saying why you've failed the test.
There are 4 main things the letter might say:
you don't have a 'right to reside' - this means you haven't shown you have a right to claim benefits in the UK
- you're not a 'qualified person' - this means you haven't shown you're working, looking for work or have enough money to support yourself
- you're not a family member of a qualified person - this means you haven't shown you're related to the person who's qualified, or you haven't shown they're a qualified person
- you're 'a person who must be treated as not in Great Britain' or 'not habitually resident' - this means you haven't shown the UK, Ireland, Channel Islands or Isle of Man is your home and you plan to stay
If your letter says something different, get help from your nearest Citizens Advice.
If you don’t have a right to reside
If you have pre-settled status you can apply for:
- Personal Independence Payment
- Child Disability Payment
- Adult Disability Payment
- Attendance Allowance
- Carer’s Allowance
If you think you have a right to reside but you're finding it hard to get evidence to prove it, check other ways to prove your right to reside.
If you can't show you have a right to reside, it's worth checking to see if you have a right to reside because of a family member.
If you’re not a qualified person
You might be a qualified person if you have a right to reside as a:
- self-employed person
- student with sickness insurance
- self-sufficient person with sickness insurance - this means you have enough money to support yourself
You might be able to prove you’re a qualified person if you can show more evidence to support your claim. For example, proof you’re working or sickness insurance documents.
You’ll need to gather as much evidence as you can to prove you’re a qualified person. If you’re finding it difficult to gather evidence, for example, if you’re doing cash-in-hand work, it's worth checking if there's another way to prove your right to reside.
Once you’ve gathered your evidence you can make a new claim for benefits.
If you're not a family member of a qualified person
When you apply for benefits, you’ll need to prove your family member’s right to reside. If they’re a qualified person you’ll need to show evidence like their employment contract or payslips.
You’ll also need to show evidence of your relationship to them, such as a birth or marriage certificate.
If you’re treated as not in Great Britain or not habitually resident
Being habitually resident means you’ve shown the UK, Ireland, Channel Islands or Isle of Man is your home and you plan to stay.
You can still stay here if you're not habitually resident or a person who must be treated as not in Great Britain.
You might have failed the test because you haven't been in the country long enough. You'll usually need to be in the UK, Ireland, Channel Islands or Isle of Man for at least 1 to 3 months before you can claim benefits - this is called an ‘appreciable period of time’.
The amount of time you need to be here isn’t defined by law. It’s worth making a new claim because the longer you’ve been here, the more chance you’ll have of passing the test.
Challenge the decision
If you think the benefits office has made the wrong decision, you can challenge it. You'll need to check if you can pass before challenging:
If you're not sure if you should, you can contact your nearest Citizens Advice for help.
To challenge a decision about an HMRC or DWP benefit, you’ll need to ask for a ‘mandatory reconsideration’ - this means they’ll look at the decision again. It's best to provide extra evidence to support your challenge.
For most of these benefits, you’ll have 1 month to ask for a mandatory reconsideration from the date the original decision was sent to you. Check your decision letter if you're not sure.
For tax credits, you must ask for a mandatory reconsideration within 30 days of the date of the decision.
You might get a decision on your challenge within 14 days but it could take longer. If you haven’t heard within 30 days, contact them to check.
You could make a new claim for benefits while you’re waiting. You don’t need to wait for the result of your challenge.
If you want to challenge a decision, read more about how to make a mandatory reconsideration.
If you’re on a low income or you don’t work
- Universal Credit
- Housing Benefit
- income-based Jobseeker’s Allowance
- income-related Employment and Support Allowance
- Income Support
- Pension Credit
- working tax credits
If you’re ill, disabled or caring for someone
If you have children
Challenging a Social Security Scotland benefit decision
If you want to challenge a decision about a Social Security Scotland benefit, this is called asking for a re-determination.
Find out more about challenging a Social Security Scotland benefit decision.