This chapter outlines what information will need to be confirmed when Part A of the human rights assessment template is completed. This includes: confirming the person’s eligibility for social services’ support, whether they would be destitute without the provision of support, and which excluded group applies based on their immigration status.

3.1 Eligibility for social services’ support

Schedule 3 places a bar on the provision of support or assistance that is administered under legislation listed in the table in this section. This legislation enables accommodation and financial support to be provided by social services to people with no recourse to public funds, along with care and support for adults, and leaving care services for former looked after children. The sub-sections contain additional information specific to each household type.

3.1.1 Table: Applicable legislation by household type

3.1.2 Families

For families with no recourse to public funds, eligibility for accommodation and financial support is determined by the outcome of the child in need assessment. When a child has been found to be in need due to the parent’s lack of access to benefits, employment, or other resources, accommodation and financial support can be provided to the whole family household in order to meet the child’s needs.

Schedule 3 applies to a family household when the parent is in ‘in breach of immigration laws’ or is otherwise in an excluded group. As it usually takes some time for a child in need assessment to be concluded, the local authority may decide to start the human rights assessment if it is likely that the family will qualify for support
If the local authority establishes, following a child in need assessment, that the family are not eligible for support, there will be no reason to carry out a human rights assessment and the family will need to be signposted to alternative services.

Schedule 3 does not apply to other assistance that may be provided by social services to a child, such as services to meet a child’s needs arising from a disability. Therefore, assistance other than accommodation and financial support can be provided to a child or their family, regardless of the parent’s immigration status.

For more information about when a family will be eligible for accommodation and financial support, see the NRPF Network practice guidance: Assessing and supporting families with no recourse to public funds (England).

3.1.3 Care leavers

Schedule 3 does not apply to children under 18 who are being looked after by the local authority, including Unaccompanied Asylum Seeking Children (UASC).

However, Schedule 3 will apply when a former looked after child turns 18 and is ‘in breach of immigration laws’, such as a UASC who becomes Appeal Rights Exhausted (ARE) following an unsuccessful asylum application (if they claimed ‘in-country’) or ARE following the expiry of UASC leave. In such cases, a human rights assessment will need to be undertaken to establish whether leaving care support can be provided or continue to be provided.

In England, leaving care support that is provided under the following sections of the Children Act 1989 is subject to Schedule 3:

• Section 23C: Provision of support and assistance, including accommodation & financial support until age 21.
• Section 23CA: Assistance to pursue further education and training until age 25.
• Section 23CZB: Personal adviser support from age 21 to 25.
• Sections 24A & 24B: Advice and assistance to qualifying care leavers.

The local authority will have a duty to provide accommodation and financial support to a care leaver until they are age 21 (section 23C) or 25 when they are on a course of education or training (section 23CA).

A care leaver will also be entitled to personal adviser support from age 21 to 25 if they request this (section 23CZB). The Department for Education statutory guidance on extending personal adviser support to age 25, states, at paragraph 33, that section 23CZB does not introduce a duty to accommodate.

The amount of funding that local authorities receive from the Home Office for supporting UASCs significantly reduces once the young person turns 18 and will end should a young person become ARE. The current amounts are outlined in the Home Office funding instructions for local authorities. No funding is provided to local authorities for supporting care leavers who are on other immigration routes. However, when the relevant leaving care duties are engaged, the local authority will need to provide accommodation and financial support for a care leaver who cannot access benefits or mainstream housing assistance due to their immigration status.

Although adult asylum seekers who are destitute can access support from the Home Office, for a former looked after child, the responsibility to provide accommodation and financial support remains with the local authority until leaving care duties are discharged, even though Home Office funding only continues for three months after a young person becomes ARE (see: SO v London Borough of Barking and Dagenham [2010] EWCA Civ 1101).

If a young person who is ‘in breach of immigration laws’ returns to the local authority to request support after they turn 21 years old and before they are 25, the local authority will need to determine whether it has a duty to provide any assistance under sections 23CA or 23CZB. The provision of such support will be subject to the outcome of a human rights assessment. If leaving care duties were previously discharged following a human rights assessment, the assessment would need to be reviewed and, where necessary, revised to take account of any changes to the young person’s circumstances.

A human rights assessment will not be required if the local authority has no duty to provide a young person with leaving care support.

As duties to provide leaving care support are time-bound, a care leaver’s support options must always be addressed in the pathway plan if it appears that they may have no entitlement to benefits or employment due to their lack of immigration status after leaving care duties are due to be discharged.

3.1.4 Adults with care needs

For adults with no recourse to public funds, eligibility for accommodation and financial support is determined by the outcome of the needs assessment. Care and support can only be provided when the adult has care and support needs, which have not arisen solely because of destitution, or the physical effects/ anticipated physical effects of destitution.

In England, the provision of support or assistance under Part 1 of the Care Act 2014 is subject to Schedule 3. In practice, this is limited to the following provisions of the Care Act:

• Duty to meet needs for care and support (section 18).
• Power to meet non-eligible needs (section 19(1)).
• Duty and power to meet a carer’s needs for support (section 20)

A human rights assessment will therefore be necessary when an adult is in an excluded group and is assessed as having eligible care and support needs, engaging section 18 of the Care Act. As it usually takes some time for a needs assessment to be concluded, the local authority may decide to start the human rights assessment if it is likely that the adult will meet the Care Act eligibility criteria.

When an adult has a care and support need that is not considered to be an ‘eligible need’, the local authority must consider whether to exercise its discretion to provide care and support. Accommodation and financial support must be provided under section 19(1) if the local authority’s failure to meet a non-eligible care and support need would result in a breach of human rights. In order to determine whether section 19(1) is engaged when an adult is ‘in breach of immigration laws’, a human rights assessment must be undertaken to establish whether there are any other sources of support or assistance available, such as Home Office asylum support and, if not, whether the adult is able to return to their country of origin to avoid an Article 3 breach arising from their destitution in the UK. Therefore, the human rights assessment must contain an analysis of what support is available in the UK when supporting an adult under section 19(1) is being considered (see: R(Aburas) v London Borough of Southwark [2019] EWHC 2754).

If the local authority establishes, following a needs assessment, that the adult does not have any care and support needs, there will be no reason to carry out a human rights assessment and they will need to be signposted to alternative services.

Schedule 3 does not prevent a local authority from:

• Undertaking a needs assessment (section 9) or carers needs assessment (section 10).
• Meeting urgent needs for care and support whilst assessments are being undertaken (section 19(3)).
• Undertaking its general duties with regards to providing information and advice (section 4) or prevention (section 2).

For more information about eligibility for care and support, see the NRPF Network practice guidance: Assessing and supporting adults with no recourse to public funds (England).

3.1.5 People accommodated on public health grounds during the Covid-19 pandemic

This guidance and the human rights assessment template are not intended to be used for the purpose of determining eligibility for providing support to people on public health grounds when social services’ duties are not engaged.

During the Covid-19 pandemic, local authorities have accommodated people with no recourse to public funds through the ‘Everyone In’ scheme in order to save lives and reduce public health risks. The High Court has confirmed that the following powers can be engaged to accommodate people with no recourse to public funds in England during a public health emergency: section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006 (see: Ncube v Brighton and Hove City Council [2021] EWHC 578).

Schedule 3 does not apply when support or assistance is provided under these powers, so a human rights assessment is not required to determine whether such assistance can be provided to a person who is ‘in breach of immigration laws’.

Although Schedule 3 does apply when support or assistance is provided under section 1 of the Localism Act 2011 (the general power of competence), in Ncube and two other cases, the courts have found that this power cannot be relied upon by local authorities to provide accommodation to an adult with no recourse to public funds who is ineligible for assistance under Part VII of the Housing Act 1996 (see: AR v London Borough of Hammersmith and Fulham [2018] EWHC 3453 & Aburas v London Borough of Southwark).

Any local authority that has relied on section 1 of the Localism Act 2011 to accommodate people during the pandemic, rather that the public health powers identified by the High Court, would need to seek advice from their legal department about applying Schedule 3 when a person is ‘in breach of immigration laws’.

3.2 Establishing destitution in the UK

Before the local authority can proceed to consider whether a person is freely able to return to their country of origin to avoid destitution in the UK, it must be satisfied that the failure to provide social services’ support is highly likely to lead to the person suffering a breach of Article 3 of the European Convention on Human Rights (ECHR).

Article 3 is the right not to be subject to torture, or inhuman or degrading treatment. A decision that compels a person to sleep rough or to be without food, shelter or funds, as such a decision usually amounts to inhuman treatment, therefore engaging Article 3 (see: R (Limbuela) v Secretary of State for the Home Department).

When the local authority establishes that a person’s needs must be met by the provision of accommodation and financial support, the failure to provide such support is highly likely to lead to the person suffering a breach of Article 3 (see: Birmingham City Council v Clue).

Therefore, when a person qualifies for social services’ support, the outcome of the needs assessment can be referred to in the human rights assessment and the person’s situation of destitution will not usually need to be investigated any further. However, if the needs assessment has not been concluded when the human rights assessment is started, an alternative would be to refer to any investigations that have been undertaken into a family’s or adult’s support options in order to inform a decision to provide interim support pending the outcome of the needs assessment. For a care leaver, the pathway plan will usually record any assistance that may be available to the young person in the UK and so can be referred to in the human rights assessment.

When a local authority is considering whether to provide accommodation on a discretionary basis to an adult with care needs, investigations into the person’s support options will need to be made and recorded in the human rights assessment. For more information, see section 3.1.4 of this guidance.

3.3 Excluded groups

When a person qualifies for social services’ support, their immigration status will determine whether Schedule 3 applies and, therefore, whether a human rights assessment will need to be carried out.

Schedule 3 applies to a person when they are in one of the following groups:

• A person who is ‘in breach of immigration laws’ and is not seeking asylum (paragraph 7).
• An Appeal Rights Exhausted (ARE) asylum seeker who has failed to comply with removal directions, which could apply when a person has not followed return arrangements that have been set by the Home Office (paragraph 6).
• A person with refugee status granted by a European Economic Area (EEA) state (paragraph 4).

Schedule 3 also applies to an ARE asylum seeker with dependent children who has been certified by the Home Office as failing to take steps to leave the UK voluntarily (paragraph 7A). However, as such certifications are not currently issued by the Home Office, people in this position will not be encountered by local authorities and this group has not been referenced on the template.

In practice, the majority of people who are subject to Schedule 3 will fall under paragraph 7 due to being ‘in breach of immigration laws’.

3.3.1 When is a person ‘in breach of immigration laws’?

A person will be ‘in breach of immigration laws’ if they have one of the following types of immigration status:

• Visa overstayer
• Illegal entrant
• ARE in-country asylum seeker (who claimed asylum after entering the UK rather than at a port of entry)
• ARE following the expiry of Unaccompanied Asylum Seeking Child (UASC) leave and any subsequent claims
• ARE following an unsuccessful immigration claim
• EEA national who was living in the UK by 31 December 2020 and missed the deadline to apply to the EU Settlement Scheme
• EEA national who has been refused settled and pre-settled status under the EU Settlement Scheme

Asylum seekers

Schedule 3 does not apply to a person who is seeking asylum or to a ‘port’ asylum claimant who becomes ARE.

When a person with a pending asylum claim or appeal that has not been finally determined meets the eligibility criteria for social services’ support, a human rights assessment should not be carried out.

If a person’s asylum claim has been finally determined and they become ARE, confirmation of whether they are a ‘port’ or ‘in-country’ asylum claimant will need to be obtained from the Home Office. This information is necessary because Schedule 3 only applies if the person  claimed asylum ‘in-country’. It does not apply if they are classed as a ‘port’ claimant. See: R(AW) v London Borough of Croydon [2005] EWHC 2950.

According to Home Office immigration statistics for the year ending June 2021, in 2020, about 16% of people seeking asylum claimed at port and 85% claimed in-country. 15% of Unaccompanied Asylum Seeking Children (UASC) were classed as ‘port’ claimants. However, a local authority with a sea port or airport in its area may be supporting a greater proportion of care leavers who are deemed to be ‘port’ rather than ‘in-country’ asylum claimants.

EEA nationals

Following the end of European free movement in the UK on 31 December 2020, Schedule 3 was amended to reflect the subsequent changes to the residence rights of EEA nationals and their family members. An EEA national is no longer subject to Schedule 3 on the basis of their nationality. Instead, Schedule 3 now only applies to an EEA national when they are ‘in breach of immigration laws’.

However, applying Schedule 3 when an EEA national is ‘in breach of immigration laws’ has become unworkable when the person has an entitlement to apply to the EU Settlement Scheme. For more information about how to proceed in such cases, see chapter 6 of this guidance.

3.3.2 When is a person not in an excluded group?

A human rights assessment is only required when a person is in an excluded group and therefore does not apply to anyone who has leave to remain or is otherwise lawfully present in the UK. This means that there are many people with no recourse to public funds who can be provided with social services’ support without the local authority being required to undertake a human rights assessment. When such a person meets the eligibility criteria for social services’ support, it would be unlawful to refuse assistance on the basis that they can return to their country of origin.

For example, Schedule 3 does not apply to a person when they have one of the following types of immigration status:

• Leave to remain with NRPF
• Section 3C leave
• Settled or pre-settled status
• Pending ‘in-time’ EU Settlement Scheme application submitted before 30 June 2021) when they were exercising a European right to reside on 31 December 2020
• Asylum seeker (i.e. their asylum claim has yet to be finally determined by the Home Office decision or appeal courts)
• ARE asylum seeker who claimed asylum at port of entry

3.3.3 How to check immigration status with the Home Office

It is necessary to obtain accurate information about the person’s current immigration status to determine whether they are ‘in breach of immigration laws’ or in another excluded group. As a person’s immigration status can change, it is important that up-to-date information about this is obtained prior to undertaking or reviewing the human rights assessment.

In family households, information about the nationality and immigration status of each dependant will also need to be obtained, as this may have a bearing on the parent’s immigration position. It should not be assumed that each member of the household will have the same nationality or immigration status as the parent.

Immigration status information can be obtained directly from the Home Office in one of the following ways:

• Requesting a status check or raising a query with the Home Office on the NRPF Connect database if the local authority subscribes to this.
• Using the Home Office Status, Verification, Enquires and Checking email service at: ICESSVECWorkflow@homeoffice.gsi.gov.uk.

Information obtained from the Home Office may need to be checked with the person directly and/or their legal representative in case a new application or appeal has been lodged or is being prepared.