SCOPE OF THIS CHAPTER
This chapter provides substantial detail with respect to the issues around eligibility criteria, Human Rights Act and the Care Act responsibilities, particularly when dealing with families identified as being 'destitute' and the balances and judgements that have to be made. The chapter also contains a Human Rights Assessment form.
AMENDMENTThis chapter was updated in May 2018 to add a link to NRPF Securing British Citizenship for looked after children (2017). This reflects the Project for the Registration of Children as British Citizens. 'The Local Government Ombudsman has recently criticised a local authority for not ensuring a child in its care received specialist legal advice and assistance to sort out the child's right to British citizenship. Having British citizenship has a profound impact on a child's future and identity. Yet failing to secure a child's citizenship can lead to that right to citizenship being lost altogether'.
The condition of no recourse to public funds (NRPF) applies to a person in the UK who is subject to immigration control.
This policy and procedure applies to a person who is subject to immigration control who does not have the right to work and has no entitlement to welfare benefits, public housing or UKBA asylum support. Legal restrictions on no recourse to public funds are provided in section 115 of the Immigration and Asylum Act 1999.
The Care Act 2014 came into force on 1 April 2015 and provides the legal framework on assessments of adults including those who have no recourse to public funds. Case law is yet to be developed to assist in understanding and interpreting the new legal framework.
Individuals with mental health problems, physical health problems, older people and those suffering Domestic Violence and Abuse may be entitled to local authority services under adult social care legislation (or where applicable, under the Mental Health Act 1983).
Support may be provided by a local authority to children and families in the UK under the Children Act 1989, where a child is found to be a Child in Need.
Sections 115 and 117 of The Immigration and Asylum Act 1999 exclude a person who is subject to immigration control from being entitled to receive the following welfare benefits. References to 'public funds' in England to which people with NRPF are not entitled mean:
The following services are not classified as "public funds"under the 1999 Act, therefore, may be provided to people who are subject to immigration control if they satisfy the relevant eligibility criteria:
European Economic Area (EEA) nationals are permitted to work in the UK and have access to public funds, but their eligibility to certain benefits relates to their 'right to reside' which can be complicated to determine. Thus EEA nationals may only be provided with local authority support if it is necessary in order to prevent a breach of a person/family's human rights or their European Community Treaty rights.
As well as meeting the eligibility criteria for all applicants for social services, asylum seekers and others subject to immigration control must also meet other statutory requirements in order to qualify for support. Not all do so.
This policy and procedure has been developed to provide a consistent approach by adult and children's social care to single people and families with no recourse to public funds (NRPF) who seek assistance and support from social care staff.
All staff from adult and children's social care will follow the procedure set out in this protocol. This should ensure that whichever team the person(s) contacts they are assessed in the same way to determine whether they are eligible for a service. The procedure is for use when working with:
This policy relates specifically to four classes of people who are ineligible for support under section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002.
An asylum seeker or other person subject to immigration control and therefore with no recourse to public funds (NRPF) is eligible for support if:
The authority is obliged to advise the Home Office, UKBA, the details of any person reasonably suspected to be a failed asylum seeker refusing to leave the UK and/or unlawfully present in the UK.
The following legislation is relevant to this protocol:
Section 54 and schedule 3 of the Nationality Immigration and Asylum Act 2002 removes the rights of EEA nationals and their dependants and others to care and support under the Care Act and section 17 Children Act 1989.
Schedule 3 of the NIAA 2002 prohibits local authorities from providing support to:
Schedule 3 enables the authority to provide care and support to those who are restricted from support if this is necessary to avoid a breach of the person's human rights. In the case of EEA nations and their family members, Adult Social Care may however have a duty to provide support if it is necessary to avoid a breach of a persons rights under the European Convention on Human Rights (ECHR). The relevant articles of the ECHR (see the Human Rights Act 1998) are likely to be:
EEA Nationals do not require leave to enter or remain in the UK however eligibility for public funds in the UK is subject to restriction. Nationals will be eligible if they have:
If they are refused public funds due to no right to reside, this may be referred to Children's Services as the child may be destitute and 'in need'.
Families with children from EEA countries are only in rare circumstances supported under section 17 of the Children Act. Child In Need and Human Rights Assessment should be completed on EEA migrants who cannot support themselves and become destitute.
There are two fundamental steps that the authority should undertake in assessing whether there is a duty to provide care and support to someone with NRPF.
Staff must establish the immigration status of the person prior to an assessment. This is especially required when approached by an adult:
Section 13 (1) of the Care Act requires the authority to determine, following an assessment, whether any needs identified meet the national minimum eligibility criteria for care and support. The Care and Support (Eligibility Criteria) Regulations specifies the test to be applies under the Act and specified outcomes.
To be eligible, the needs of the person with NRTF must arise from a physical or mental impairment or illness and not specifically from the effects of the person's immigration status or destitution.
When considering the criteria for accommodation that may be required, staff must consider the suitability of such accommodation and whether the person's ability to achieve a particular outcome has a significant impact on their wellbeing. This will determine how the Authority will meet eligible needs.
The Authority has a general power to meet care and support needs that do not satisfy the eligibility criteria. Subject to consideration under the Human Rights Act, the Authority may decide not to provide any support. In those circumstances a written explanation setting out reasons for the decision must be provided on how the person can reduce and/or delay their specific needs in future. In the case of people with NRPF such information could include where to obtain immigration advice and local charities.
Previously, local authorities had specific powers under the National Assistance Act to provide accommodation to pregnant women and nursing mothers. There is no such provision under the Care Act but there is a power to provide accommodation to a destitute pregnant woman with no children.
Merton would take into account the availability of asylum support from the Home Office in considering whether to exercise it's discretion under the Care Act to provide accommodation to pregnant women who are destitute and have no children.
Assessments of nursing mothers should be undertaken under Section 17 of the Children Act.
The individual must demonstrate they are normally resident within Merton and/or they arrive within the Borough of Merton.
Applicants previously living outside of Merton must demonstrate they are now resident in Merton and give the reasons for moving to Merton rather than claiming in the area where they were previously normally resident. If they moved to Merton to gain employment and that has ceased they should demonstrate that they have made reasonable efforts to find alternative employment and must have been resident in the borough. They must demonstrate:
In terms of children, under Section 17 Children Act 1989 a Local Authority has duty to assess children in need in their area. Physical presence is required in the Local Authority's area. The responsible Local Authority will usually be the Local Authority area where the child was living when the need arose. The exceptions are when a child or family is accommodated by another local authority under Section 17 Children Act or is subject to a Care Order in another local authority.
There are two circumstances under which care and support under the Care Act could be refused to adults with NRPF:
Decisions must be in writing and clearly communicated to the applicant. Support can be withdrawn with reasons but reasonable notice must be given to enable the person to make alternative arrangements. 21 days notice is considered to be reasonable but the length of notice depends on the circumstances of the adult.
Withdrawal of support would be made following a grant of leave to remain in the UK. If the support included housing, social services should liaise very closely with the housing department to ensure that duties under the Housing Act 1996 are met without delay. Section 23 of the Care Act prevents the authority from providing accommodation when it could be provided under the Housing Act.
All assessment decisions by staff must be recorded in writing and the outcome clearly communicated to the client.
If the person is found to be ineligible for support the outcome should clearly state why the client is not eligible or no longer eligible. If support is to be withdrawn 21 days notice should be given.
Social workers/care co-ordinators must be aware that the council has a duty to inform the Home Office of any person they suspect or know to be unlawfully present in the UK or a failed asylum seeker (paragraph 14 of schedule 3 to the Nationality, Immigration and Asylum Act 2002.
Persons found to be ineligible/refused support should be given information or voluntary organisations that might be able to help.
If a duty is accepted to provide accommodation, the cost code to be used is MSAD003.
If accommodation is provided then:
The client will be given 14 days to appeal any decision made by the Council. The client must be advised to submit the grounds, including any supporting evidence in writing. A panel will be convened which will consist of the Team Manager, Head of Service, Social Worker/Care Co-ordinator.
The client will be informed of the decision of the panel in writing within 10 working days of the panel decision.
The decision of the panel is final.
The following types of support may be provided to persons with no recourse to public funds who are ineligible for support under schedule 3 of the Nationality, Immigration and Asylum Act 2002, where it has been judged that it is necessary to avoid a breach of their human rights.
Section 95 of the Immigration and Asylum Act 1999 defines destitution in relation to the provision of asylum support. Case law has established that in order to be classed as destitute the adult should show that they have no other means of support available to provide accommodation and/or to meet their essential living needs.
Staff should, therefore, explore whether support could be provided by friends or family, the voluntary sector, the community, a sponsor, savings, disposal of valuables or access to any for of benefits.
Section 21 of the Care Act exempts authorities from meeting the needs of the following adults listed in Section 115 of the Immigration and Asylum Act 1999 and whose needs have arisen solely because of destitution or the physical effects or anticipated physical effects of being destitute. They are also excluded from receiving preventative assistance when their needs for care and support have arisen or may in the future arise solely because they are destitute or due to the physical effects, or anticipatory physical effects of destitution:
Staff should, therefore, record in their decision on eligibility for support whether the person falls or does not fall within the exemption.
In Merton any person applying for or receiving support must be destitute or likely to become destitute within 14 days if support is not provided by the LA. The client must demonstrate:
When children and families present themselves to the Authority, staff should assess whether the children are Children in Need including whether they have any needs over and above destitution. Children with needs over and above destitution may include the following:
Schedule 3 of the Nationality Immigration Asylum Act 2002 prevents local authorities from providing support or assistance under Part 1 of the Care Act to certain migrants. Care and support can be provided to an adult or carer under the Care Act if it is necessary to avoid a breach of a person's Convention rights or Community Treaty rights. The Authority therefore has to undertake a Human Rights assessment to establish whether assistance under the Care Act is necessary to prevent a breach of the adult's human rights or rights under the European Community treaties.
The human rights assessment must determine:
The Human Rights assessment must be undertaken prior to the Care Act assessment to establish whether the bar on providing support or assistance under the Care Act, should be lifted in order to avoid a breach of human rights or Community treat rights (see Appendix 1: Human Rights Assessment Template for a template but questions should be tailored to address the person's specific circumstances). A conclusion and decision must be based on all information relating to the questions above. All legal or practical barriers to a return to the country of origin must be identified to establish whether a return is practical.
An outstanding application to the Home Office for asylum or raising article 3 and/or article 8 grounds would constitute a legal barrier to return. A local authority must have regard to the findings of the Home Office in refusing an asylum claim or application for leave to remain, or by the courts in an appeal determination. If the person claims that their circumstances have changed since the decision, he should be advised to seek advice on their options
If a carer is excluded under Schedule 3, a human rights assessment is required to establish whether support or assistance under the Care Act is necessary to prevent a breach of the carer's human rights or Community rights. The assessment is required, whether or not the adult with needs is excluded under Schedule 3.
If the assessor concludes that a decision can not be reached prior to completion of a care assessment, the authority may then consider undertaking the care assessment, recording that the assessor is unable to establish whether the exception to schedule 3 of the 1999 Act applies. In those circumstances the human rights assessment may be undertaken in conjunction with or after the Care Act assessment has been concluded.
On completion of the Care assessment, a further human rights assessment should be undertaken to establish whether advice, assistance, care and support is necessary to prevent a breach of the person's human rights or rights under the EC treaties.
In practice the relevant articles of the European Convention on Human Rights are likely to be:
Proof must be sought that an application to remain in the UK under article 3 or 8 has been made in cases involving non-EEA nationals who are otherwise ineligible for services but who claim that a failure of the local authority to provide support will result in a breach of article 3 or article 8.
Article 3 of the European Convention on Human Rights is as follows: "no one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 3 is an absolute right i.e. if proved there is no defence.
Degrading treatment occurs where a person reasonably feels fear and anguish that is humiliating and debasing where this is caused by the action or action of national or local government.
If the Home Office has refused an individual's claim under article 3 and/or 8 then the Council can withhold support as case law has established that such a person, who can and should return to his country of origin but refuses to do so, would suffer degradation as a result of his decision to stay in the country and not as a result of any breach of human rights by the authority. If an Article 3 claim has been rejected by the Home Office, it follows that the client could avoid reaching the level of degradation described in article 3 by returning to his/her country of origin.
Article 8 of the European Convention on Human Rights is as follows:
Article 8 is a qualified right i.e. once it is established that the right exists (under article 8 (1) it is necessary to consider whether any interference with the right is justified (under article 8 (2))
In article 8 cases the client needs to demonstrate what effect failure to provide support would have on them and the council determines whether or not support should be provided.
If support is refused the council must be able to demonstrate that this is a fair and proportionate response balancing the need to conserve resources and the impact the refusal will have on the applicant. Legal advice should be sought when a potential breach under case law in this area will affect the response.
In relation to both Article 3 and Article 8 claims, if someone has submitted an application to the UKBA based on either of these Articles, they are not caught by the restrictions under Schedule 3 of the NIAA. Where accommodation and/or services are being requested in such cases, the local authority must consider whether services should be provided under section 17 of the Children Act 1989.
Where there is no asylum claim the local authority is required to consider whether the denial of accommodation and/or services would breach a family's Article 3 or 8 rights. In other words, the local authority must conclude that withholding/withdrawing support and offering tickets to the family's country of origin would not breach Article 3 or 8.
The Supreme Court decision in the case of Tanzania (2011), raised the importance of seeking the child's views when assessing.
The conclusion of a Human Rights Assessment is to either:
The authority should identify any legal or practical barriers to a return to the country of origin. Legal barriers to return would include an outstanding application to the Home Office which seeks asylum or raises Article 3 and/or Article 8 grounds.
Practical barriers may include inability to travel because the person has no travel documents or on the grounds of ill health. These could be temporary grounds.
If there are no barriers to return, the authority does not have a duty to support an adult who is freely able to return to their country of origin. The courts have found that denial of support by a local authority in those circumstances does not amount to a breach of the person's human rights.
Immigration (European Economic Area) Regulations 2006 gives carers of British citizens a right to live and work in the UK, when the carer has no other right of residence in the UK and removing them from the UK would mean the British citizen would have to leave the EU.
EEA countries include the 28 EU countries plus Iceland, Lichtenstein and Norway. Nationals of Switzerland (not in EEA) are permitted to work and live in the UK in the same way as other EEA nationals.
If the conclusion of the assessment is that care and support is necessary to prevent a breach of the adult's human rights or required due to legal or practical reasons preventing to travel to their country of origin, assistance must be provided if the eligibility criteria under the Care Act is met.
If the adult does not meet the eligibility criteria for support under the Care Act, a decision should be made, on the basis of a human rights assessment, whether support or assistance is necessary to prevent a breach of human rights and Community rights.
If support or assistance under Part 1 of the Care Act is not needed to prevent a breach of the Human Rights Act or Community Rights, the authority can attempt to resolve matter by either offering to fund a ticket to the adult's country of origin or referring him to Choices, which operates the Home Office's voluntary return programmes.
Although clients with NRPF are not eligible for housing assistance, good quality housing advice can play a key part in preventing homelessness by keeping people in their homes. One of the important obligations that the council has towards everyone threatened with homelessness is to give them advice and assistance to prevent them becoming homeless.
Where a client presents as NRPF one of the important steps to preventing homelessness is to identify what accommodation they have at the point of presentation. This will enable action to prevent homelessness straight away.
Officers involved in the delivery of this protocol will provide appropriate advice and assistance on:
The decision to instruct legal services must be approved at Head of Service level. Where a social worker/care co-ordinator instructs legal services it is understood by both parties that legal services act on instructions and do not make decisions. Legal services can advise on the law, tactics and options and whether the actions of the instructing team are lawful.
However, it is for the department to make the decision as to what they are instructing legal services to do. Notwithstanding this it is also the role of legal services to protect the council's position and to ensure that the legal officer's role as an officer of the court is not compromised.
All level 3 managers involved in the delivery of this protocol have budgetary control for the commissioning of the legal advice. However, it is the responsibility of all officers to ensure that records are kept.
If a duty arises to support an individual who has no recourse to public funds, subsistence payments would be made based on an assessment of individual needs.
There is no legislation or guidance that sets out the rates of subsistence to be provided to a family or adult when a local authority has assessed the need for support under section 17 of the Children Act 1989 and the Care Act 2014.
The courts have however considered issues relation to subsistence from a local authority and have held that authorities are responsible for deciding what level of services are appropriate to be able to meet needs in order to safeguard and promote their welfare. The decision must, however, not be irrational or incompatible with the human rights or European law.
When considering the amount of subsistence to pay, the Authority can take into account:
The court examined the way the Home Office had set its rates for support to asylum seekers in Refugee Action v SSDH  and considered what is "essential living needs". The following should be considered:
Agreement of funding will be made at Head of Service level.
The costs of care package (please arrange for domiciliary care via brokerage and NOT direct payments).
The cost code for the central budget for NRPF is 301301. All payments will require service agreements on the social care information system and notes to be added into note fields "not to be financially assessed".
Before the assessment starts the social worker/care co-ordinator will need to check the client's details before any service decision is made. The NRPF Connect data base needs to be checked (this will demonstrate if the client is known to other Local Authorities).
Officers must ensure that the client completes the NRPF application form attached as appropriate.
Officers must tell the client that they will be asked detailed questions to confirm information. Officers must make contemporaneous notes and this must be placed with the clients file.
No decision will be made without full information.
Officers need to check whether an interpreter is needed. N.B. it is not advisable to use a family member.
Have you confirmed each person's immigration status?
If Immediate Destitution is Claimed:
Children and Dependants
Make sure we have done internal checks:
Obtain agreement to do external checks:
Assessments which need to be considered:
Whilst assessments are taking place:
All identification documents supplied must be original documents.
If the applicant or any dependants have health needs they must provide any documented evidence of ill health or disability for any member of the family e.g. OT reports, mental health/psychiatric reports.
Immigration checks can be made by contacting:
Immigration Officer Croydon Enforcement Unit
Tel: 0208 603 8476
Responsibility for Asylum issues - Immigration Team
Pearl Kuranchie: 0208 603 8014
Team Leader: 07776361994
Responsibility for Enforcement issues
Michele Louden: 0208 603 8652
HM Inspector: 07958 732 124
Responsibility for Enforcement issues
Anne Johnson: 0208 603 8389
Enforcement Manager - Email: Anne.Johnson2@homeoffice.gov.uk
Responsibility for Enforcement issues
Shofia Suliman: 0208 603 8404
Casework Manager - Email: Shofia.Mallu2@homeoffice.gov.uk
Croydon Public Caller Unit
40 Wellesley Road
Croydon CR4 2BY
Tel: 0870 6006 7766 (general enquiries)
Tel: 0870 241 0645 (application forms)
This protocol will be reviewed on an annual basis. The need for an earlier review may arise in the event of any changes to law and practice.
Only valid for 48hrs