This chapter sets out the legislation and case law that local authorities must consider when deciding whether it is appropriate to use discretionary powers to provide housing and financial support to a person with NRPF who is not eligible for care and support, including accommodation, under the Care Act 2014. The powers set out in section 19(1) of the Care Act and section 1 of the Localism Act 2011 may be used to prevent a breach of human rights or to manage a situation where the impact of failing to meet a person’s needs could have serious long term consequences for the individual and local authority.
5.1 Considerations for using a discretionary power
It is essential that local authorities properly consider and document whether a discretionary power will or will not be used in order to adhere to public law principles. Where a power is engaged to provide housing to a person with NRPF, it is important that practitioners and the person receiving accommodation understand if this may be limited, for example, where a change of circumstances may lead to the accommodation being withdrawn. If the staff involved do not know the legal basis under which accommodation has been provided, then the case will not be effectively managed and the local authority will be faced with a challenging situation when it comes to review the provision of support.
The Public Law Project provides guidance about how a public body, including a local authority, must use a discretionary power:
‘Where the law gives a public body a discretion to do something, that discretion must be exercised in line with public law principles which require the public body to:
- Take into account relevant information and disregard irrelevant information;
- Ask the right questions, for example by addressing the right issue and taking reasonable steps to obtain information on which a proper decision can be based;
- Not delegate a decision for which the law gives it responsibility. Only the public body can make the decision; if they allow another person to take a decision for them they are giving their power away and failing to be properly accountable;
- Make sure they have not limited, or fettered, their discretion by applying a very rigid policy as if it were the law.’
The Care Act 2014 requires local authorities to consider using the section 19(1) power when a person does not have eligible care and support needs, so failure to consider this and document any reasoning why the power is not engaged will be unlawful. Following the case of R(GS) v Camden (2016), which is described below, where the Care Act power is not engaged, the local authority will be required to consider whether section 1 of the Localism Act 2011 can be used to provide housing.
There may also be instances where a person is not assessed for care and support under the Care Act but the local authority must consider using section 1 of the Localism Act to provide support, for example, for a confirmed victim of trafficking who does not present with an appearance of need that triggers the duty to undertake a needs assessment.
Local authorities are encouraged to evidence any support provided on a discretionary basis by recording cases on NRPF Connect, from which they can also get updates from the Home Office about the progress of any immigration applications that have been made.
5.2 Section 19 of the Care Act 2014
Where a local authority determines it has no duty under the Care Act 2014 to meet a person’s needs for care and support, it must then consider whether to use the general power under section 19(1) to meet needs that do not satisfy the eligibility criteria:
‘(1) A local authority, having carried out a needs assessment and (if required to do so) a financial assessment, may meet an adult’s needs for care and support if—
- the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and
- the authority is satisfied that it is not required to meet the adult’s needs under section 18.’
If this power is used, the local authority must comply with the Care Act in the same way as they would for a person to whom they have a duty to meet needs for care and support, and so must provide a care and support plan and conduct reviews.
Support under section 19(1) of the Care Act may only be provided to a person who is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, where the local authority has assessed that this is necessary to prevent a breach of their human rights or rights under the EU treaties, for example, when there is a legal or practical barrier preventing the person from returning to their country of origin. For such people the local authority must undertake a human rights assessment as well as a needs assessment to establish whether a person in an excluded group can return to their country of origin.
When return is not possible, or where a person requesting assistance is not in an excluded group, then the local authority must determine whether their circumstances are such that refusing to provide accommodation under section 19(1) would result in a breach of their human rights.
The Statutory Guidance sets out, at paragraph 10.29, what the local authority must do if it decides not to use this power:
‘If the local authority decides not to use its powers to meet other needs, it must give the person written explanation for taking this decision, and should give a copy to their advocate if the person requests. If the person cannot request this, then a copy should be given to the person’s advocate or appropriate individual if this in the best interests of the person. This explanation must also include information and advice on how the person can reduce or delay their needs in future. This should be personal and specific advice based on the person’s needs assessment and not a generalised reference to prevention services or signpost to a general web-site. For example, this should involve consideration of alternative ways in which a person could reduce or delay their care and support needs, including signposting to support within the local community. Authorities may choose to provide this information after the eligibility determination, in which case this need not be repeated again. At whatever stage this is done, in all cases the person must be given a written explanation of why their needs are not being met. The explanation provided to the person must be personal to and should be accessible for the person.’
Where this power is not used, local authorities should ensure that the information and advice given is appropriate to the person’s needs, so is likely to need to include: where to access immigration advice, local destitution charities, Home Office asylum support, Home Office voluntary returns service and signposting to the NRPF Network website.
|Mr Y is a French national who has been in the UK for 18 years and is suffering from end stage kidney disease for which he receives dialysis three times a week. Mr Y does not have a right to reside under European law and cannot claim most benefits or access homelessness assistance. Mr Y’s consultant advises that even one missed session of dialysis represents a risk to his life. Given the complexities of transferring his care to health services in France and the fact that even one missed session of dialysis carries significant risk of causing serious illness or sudden death, return would breach Article 3 of the ECHR. Social services have assessed that Mr Y does not have eligible care and support needs but making Mr Y homeless in light of his medical needs would constitute a breach of human rights. In the absence of any NHS provision to provide accommodation, the local authority provides housing under section 19(1) of the Care Act 2014 to prevent a breach of human rights. To prevent support being ‘open ended’ the local authority begins discussions with the Home Office about whether leave to remain with recourse to public funds on an exceptional basis might be granted.|
5.2.1 Pregnant women
The National Assistance Act 1948, which preceded the Care Act 2014, contained an explicit power allowing local authorities to provide care and support to expectant and nursing mothers who do not have care needs in addition to those associated with pregnancy. There was no requirement for the pregnancy to be at a particular stage in order for this support to be provided. When the government consulted on the Care Act eligibility regulations, responders, including local authorities, confirmed that no one who would have been provided with accommodation under the previous legislation would fall out of scope of the Care Act.
When an expectant mother with NRPF, who has no children in her care, requests assistance with housing, then the local authority should therefore consider using the general power under section 19(1) of the Care Act to provide support, and may also provide interim accommodation under section 19(3) to prevent homelessness before a needs assessment has been concluded. Additionally, the UK is a signatory to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires that pregnant women are given access to appropriate services, including access to nutrition.
If the expectant mother is in a group excluded from support by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, then the human rights assessment must consider how the pregnancy impacts on her ability to travel and return to her country of origin.
Children’s services departments may support pregnant women and, where appropriate, undertake a pre-birth assessment, so housing may be provided by a different council department even though the power to do this exists under the Care Act.
5.3 Section 1 of the Localism Act 2011
Where a person does not have eligible care and support needs and the local authority has decided not to use section 19(1) of the Care Act 2014 to meet non-eligible needs, it will need to consider whether to use its general power of competence under section 1 of the Localism Act 2011. This gives the local authority a power to do anything that an individual generally may do, and may exercise this power in any way, including for the benefit of residents.
Support under section 1 of the Localism Act may only be provided to a person who is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, when the local authority has assessed that this is necessary to prevent a breach of their human rights or rights under the EU treaties, for example, where there is a legal or practical barrier preventing the person from returning to their country of origin.
Where it has been established that a person cannot return to their country of origin (or Schedule 3 does not apply to them) and they have no other housing options open to them in the UK, then the local authority would need to consider whether the person has particular vulnerabilities that mean refusing support may give rise to a breach of human rights. If the local authority finds that a breach of human rights will occur, then a duty to provide housing under section 1 of the Localism Act may arise.
The principle of using the Localism Act power to provide housing in such an instance was established in the case of R(GS) v LB Camden (2016), which concerned a Swiss national who had physical and mental health problems and was wheelchair dependent. The local authority accepted that GS could not return to Switzerland because she did not have the mental capacity to be able to either decide this or to consent for treatment for her mental health condition, and so provided her with accommodation. In October 2015 the local authority undertook a needs assessment under the Care Act 2014, concluding that GS did not have eligible care and support needs, her only need being accommodation, and that the section 19(1) power was not engaged. The only benefit GS was entitled to was a personal independence payment (PIP), which was not sufficient to enable her to afford accommodation and to meet her living costs.
The court found that the local authority’s power under section 1 of the Localism Act 2011 could potentially be exercised to provide GS with accommodation, and also considered whether this was converted into a duty to prevent a breach of her human rights. The court determined that the failure to provide GS with accommodation would be a breach of Article 3 (the right not to be subject to inhuman or degrading treatment) of the European Convention on Human Rights (ECHR) when the entirety of her circumstances were taken into account, including: her inability to afford accommodation; her potential social isolation; and previous effects of homelessness on her mental health (including suicidal ideation). The local authority therefore had a duty to provide accommodation under section 1 of the Localism Act.
Given that similar considerations would need to be made for using either discretionary power, it is unclear why section 19(1) of the Care Act was not engaged if GS’s circumstances and vulnerabilities were such that failure to provide accommodation would result in a breach of her human rights. R(GS) v Camden (2016) makes it clear that local authorities must ensure they also consider using the Localism Act if section 19(1) of the Care Act is not engaged.
Another example of when section 1 of the Localism Act may be used to provide accommodation is where victims of trafficking or modern day slavery require this due to gaps in the support available to them.
Local authorities may have regard to a consent order agreed by Bristol City Council, in which the council accepted that it had to provide accommodation and financial support to an EEA national, who had received a positive conclusive grounds decision that she was a victim of trafficking and was waiting for a decision on an application for leave to remain. She was not eligible for benefits, having failed the right to reside test, and could only provide for her most basic needs by engaging in prostitution. She brought a judicial review claim against the local authority after support was initially refused and withdrew the claim when a consent order was agreed that she would receive accommodation and subsistence until she transitioned to mainstream benefits.
The local authority accepted that section 1 of the Localism Act can be used to provide support and assistance to victims of trafficking where this is necessary to avoid a breach Articles 3 and 4 (prohibition of slavery and forced labour) of the ECHR and/or to comply with Article 11 of the EU Anti-Trafficking Directive. Schedule 3 would not apply in this case due to AK having a pending application for discretionary leave to remain that had yet to be determined by the Home Office.
In all cases when considering whether to use section 1 of the Localism Act to provide housing, the local authority will need to consider whether the person has any realistic alternative housing options.
5.4 Establishing alternative housing options
In order to establish whether a discretionary power is to be used, the local authority would need to consider what alternative support options may or may not be available to the person, depending on what is appropriate to the individual’s circumstances.
Home Office accommodation may be available to someone who is
seeking asylum and can claim section 95 support, or has been refused asylum and meets the requirements for section 4 support.
People who have been referred to the National Referral Mechanism to have their trafficking case considered will be provided with accommodation and support by the Salvation Army.
When a person has lived in the UK for a significant time prior to requesting support from the local authority, then it will be necessary to establish whether these arrangements remain available, and if so, whether any information and advice can be provided to the person to prevent them from becoming homeless, for example, signposting to an immigration adviser and/or the Home Office voluntary returns service.
If a person with NRPF has a source of income, it would be reasonable to consider whether they can access accommodation in the private rented sector. However, this will be limited by affordability and, for some, the right to rent scheme in England.
People with no current immigration permission do not have the right to rent or sub-let from a private landlord, or be a paying lodger, unless the Home Office grants permission to rent on an exceptional basis, and so cannot be expected to secure housing in the private rented sector. EEA nationals, people with settled status and limited leave to remain will have the right to rent. Immigration status checks provided by the Home Office through NRPF Connect will confirm whether a person has a right to rent or has been granted permission to rent on an exceptional basis.
When a person does have the right to rent, then the local authority would need to consider how realistic securing private rented accommodation will be for a person who has a low income and cannot claim housing benefit. For example, GS was a Swiss national and was able to claim a PIP but not housing benefit. Her insufficient income to secure private rented accommodation was a relevant factor, but not the sole factor, that led to the court determining that section 1 of the Localism Act 2011 should be used to provide housing.
For more information, see sections: