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4.7 Families with No Recourse to Public Funds

SCOPE OF THIS CHAPTER

This chapter provides guidance to staff working in Social Care Teams within CS&SS regarding work with families who are unable to access various welfare benefits (and other) supports due to their immigration/asylum status.

This chapter should be read in conjunction with the Section 17 and Financial Support for Children and Families Procedure.

This guidance should be read in conjunction with the Cross service protocols delivering social care across service boundaries policy HCS 641.

Please note - In January 2012 the Border Agency wrote to all local authorities regarding data sharing between UK Visas and Immigration (UKVI) and local authorities. This letter may be viewed here.

RELEVANT GUIDANCE

No Recourse to Public Funds Network

Securing British Citizenship for looked After Children - NRPF Network

AMENDMENT

In September 2017, a link to Securing British Citizenship for looked After Children - NRPF Network was added to this chapter (above).


Contents

  1. To Which Families does this Guidance Apply
  2. Responsibility for Financial Support
  3. CS&SS Responsibilities
  4. Process
  5. The Legal Background
  6. Who is Entitled to What: Glossary


1. To which Families does this Guidance Apply

This guidance applies to families with children who are prohibited from receiving the services defined in Paragraph 1 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Normally these families fall in one of five categories.

  • Nationals of the European Economic Area;
  • Those with refugee status in another European Economic Area state;
  • Persons unlawfully present in the UK who are not asylum seekers ("overstayers" and "illegal immigrants");
  • Failed asylum seekers who refuse to co-operate with removal directions.

This guidance does not apply to:

  • Adults without dependent children;
  • Families who have an asylum application in progress ("asylum seekers");
  • Families who had previously made an asylum application and been granted leave to remain ("refugees");
  • Unaccompanied children;
  • Any children in need. A child, regardless of his or her immigration status is not excluded by Schedule 3 of the 2002 Act;
  • Families who even though they are excluded from receiving services under Schedule 3 of the 2002 Act qualify for the identified provision because if they were not to receive it their human rights would be breached.


2. Responsibility for Financial Support

This is a summary only and further information may be required. Where a family is seeking to establish their legal right to remain in the UK by making:

  • An application for asylum; or
  • An appeal against an asylum determination; or
  • An application to the Home Office on human rights grounds; or
  • An application to the Home Office for settlement on medical or compassionate grounds.

The responsibility for financial support of the family lies with UK Visas and Immigration unless a family member has a community care need. In this case, it will be the responsibility of HCC to meet all of their needs

Where a family has been granted leave to remain in the UK, the responsibility for financial support falls to the benefit agencies.

Where a family falls within one of the categories of those to whom service provision by a local authority is restricted (see Section 1, To Which Families does this Guidance Apply) the local authority is no longer able support the family, under s17 of the Children Act 1989 (welfare and other services which can be exercised in relation to adults), or under most other community care legislation. These include illegal immigrants and over-stayers.

If an individual cannot receive provision because of the limitations imposed by the 2002 Act, the local authority's powers are limited to the provision of temporary assistance and accommodation pending the family's removal from the UK, and, in some cases, assistance with the costs of removal.


3. CS&SS Responsibilities

In CS&SS the Area Assessment Teams are responsible for:

  • Carrying out Child and Family Assessments to determine the need of families for social work support, assistance and services under the Children Act 1989;
  • Provision of that support and assistance (e.g. accommodation under s20 or action consequent to enquiries under s47).

The Assessment Teams are also responsible for:

  • Assessments of the support needs of families;
  • Assessments to determine whether withdrawal of support will render a family destitute ("destitution" assessments);
  • Assessments to determine whether a person's rights are likely to be breached if support is withdrawn ("human rights" assessments);
  • The making of any necessary support and financial arrangements;
  • Reporting those families illegally in the UK to the Home Office where the Home Office has indicated that it suspects them to be in the UK in breach of immigration law;
  • The family must be assessed using the services of an interpreter and the worker must establish how long the family have been in the UK and how they have been managing.

The relevant Head of Service is responsible for deciding whether to offer or withdraw support or assistance to or from a family (see also Scheme of Delegation to Officers Procedure).

The Head of Service is responsible for deciding to accommodate a child following withdrawal of support from a family, and for deciding to assist a family with return to their country of origin.

All financial payments and accommodation arrangements for families who may not or do not have recourse to public funds are made by the Assessment Team, and subsequently by the Locality Teams who provide ongoing support after the Child and Family Assessment.


4. Process

On receipt of a referral, the Assessment Team must follow the usual processes for Child and Family Assessment and enquiries under s47 of the Children Act. See Referral and Assessments Procedures.

Staff must also:

  • See an original copy of the passport of all children and adults for whom the assessment applies;
  • See proof of where the family have been living to ascertain whether HCC is the responsible authority for assessing their needs;
  • See the original letter from Border and Immigration Authority which acknowledges their application for asylum/leave to remain;
  • Where the family cannot produce this information, an assessment cannot be fully undertaken and CS&SS cannot then legally assist. Advice must be sought from a Head of Service;
  • If financial support is requested, the family should be advised that this does not imply that support and assistance will be given, and also that the Assessment Team may need to refer the family to the Home Office. Where a family has made a claim for asylum, their support must come from UK Visas and Immigration. This remains the case where their claim has been refused and a date for removal from the UK has been set.

The Assessment Team must carry out an assessment of the family's immigration status, and, if necessary, a destitution and a human rights assessment.

If appropriate the Assessment Team must seek legal advice about the family's status, the likelihood of a legal challenge to a decision to limit or not support, and the support that should be given.

On completion of the assessment and where the worker believes CS&S does owe a duty to the family, the assessment must be scrutinised by the Services Manager, in the first instance, given the considerable costs to be undertaken by CS&SS, and approval in turn must be obtained by the Services Manager from the relevant Head of Service before the assessment is finalised.

Where the recommendation is that the only service to be offered is accommodation under s20, or that assistance should be offered to enable the family to return to their country of origin, the Services Manager must make a decision based on legal advice and the advice of the Team Manager, and take into account that:

  • The council is entitled to take into account whether support may be available from friends/relatives in terms of accommodation/ subsistence;
  • Where CS&SS decides that a duty to support is owed to the children and family, it is entitled to take into account any assets the family possess, e.g. car, jewellery, savings;
  • Where CS&SS establishes it has a duty to assist, the cheapest form of accommodation must be provided, including shared accommodation in the cheapest area which need not to be within the county's boundaries;
  • Any subsistence paid must be at UK Visas and Immigration (UKVI) rates and not benefit rates. This will not be supplemented by electricity, gas, water, clothing or transport costs. Any arrears accrued by the family are their responsibility not CS&SS's;
  • Where housing and subsistence is paid by CS&SS, a monthly check must be made with Border and Immigration to check on the progress of the family's application, and any changes to their entitlement to claim benefits ascertained so that no double payments are made.

No family must be placed in accommodation without prior agreement of the Hertfordshire Access to Resources Panel (H.A.R.P) (see Hertfordshire Access to Resources Panel (H.A.R.P) and Delegated Authority for Resource Agreement Procedure) or in an emergency from the Head of Service.

All support, where put in place, will be reviewed on a three monthly basis by HARP/ Head of Service.


5. The Legal Background

Asylum and immigration legislation has changed considerably over the past decade, and its interpretation has frequently been modified by case law. The following paragraphs are guidance to the law as it stood in mid-2006, and not a statement of it. This guidance should not be used as the basis for decision-making on an individual case. Staff should seek legal advice whenever refusal or withdrawal of support to a family is being considered.

The relevant statutes are the British Nationality Act 1981, s54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which came into force on 8 January 2003, and s9 of the Asylum and Immigration (Treatment of Claimants) Act 2004 which came into force on 22 September 2004.

The 1981 Act provides that children take on the immigration status of their parents, whether they are born in the UK or elsewhere.

The combined impact of the 2002 and 2004 Acts is to restrict the local authority's previously existing powers under either s17 of the Children Act 1989 or community care legislation to assist families who are deemed to be ineligible for support.

In the case of nationals of other European Economic Area states, and those with refugee status in those states, the assistance is limited to:

  • Temporary financial assistance and accommodation pending the family's return to their country of origin;
  • Assistance with the costs of return.

Any such assistance must be made at the lowest practicable cost to the local authority. The Courts have held that "temporary" merely means "non-permanent". There is no requirement that, for assistance to be treated as temporary, it must be short-term only. Where travel arrangements are made by the local authority, they must be made so that the person returns to his country of origin as soon as is practicable.

Assistance with support and accommodation may not be offered where a family unreasonably refuses to accept or does not make use of the assistance to return. Any such assistance must in any event be made at the lowest practicable cost to the local authority.

In the case of persons unlawfully in the UK, the assistance had been limited to temporary financial assistance while arrangements are made (by the Home Office or voluntarily) for their removal from the UK. Recent case law also suggests that local authorities may assist such persons with the costs of their return.

Where a person has unreasonably refused to leave the UK voluntarily following a failed asylum application, the family may only be supported for 14 days.

The 2002 Act confers a new duty on the authority to provide information to the Home Office on request the whereabouts of individuals who the Home Office suspects to be unlawfully in the UK.

The objective of this recent legislation is to limit the power and discretion of local authorities to provide financial support to families who have no legal right to be in the UK.

In order to avoid legal challenge, when assessing and discharging its responsibilities the authority has to follow due process. The duty to assess need remains. Decisions should be communicated in a timely manner, in a way that families will understand, and be confirmed in writing.

Legal challenges to local authorities have been founded either on the basis of failure to follow due process or under articles 3 or 8 of the European Convention on Human Rights.

Article 3 provides that no person shall be subject to torture, or inhuman or degrading treatment or punishment. The trend of recent case law has been to confirm that, provided due process is followed:

  • Requiring a person to live in another country is not inhuman or degrading treatment;
  • Neither is requiring someone to return or live in a country where standards of living, health care, education etc are far lower than the UK;
  • Provided that assistance is offered to enable a family to leave the UK, withdrawal of financial support when a family refuse to take up that assistance is not in itself inhuman or degrading treatment;

Actions to withdraw support on the basis that a family may live in another country have, however, successfully been challenged on the following basis:

  • Where a person is suffering from an HIV related illness, and the standard of medical care in their country of origin is such as to render their survival unlikely should they return (so called "HIV unwell" cases);
  • Where a family have been in the UK for many years;
  • Article 8 provides that persons have the right to respect for their private and family life, and their home and correspondence. Case law has tended to confirm that, provided due process is followed;
  • This Article does not confer a right to carry on family life in the UK as opposed to elsewhere (for example, where one parent is unlawfully present but the other is not it has been held that it is open to the entire family to live elsewhere);
  • The Article does not confer a right of entry to a person by virtue of a previously existing family relationship.


6. Who is Entitled to What: Glossary

Click here to view glossary.

End