This chapter highlights the additional considerations that local authorities will need to make when assessing the needs of a person with NRPF under the Care Act 2014, associated regulations and the Statutory Guidance.
The NRPF condition does not prevent care and support being provided by social services and a person with NRPF should be assessed and provided with this in the same way as any other adult.
The Care Act requires social services to ensure that provision of care and support, prevention, or information and advice, focuses on the needs and goals of the person requiring assistance. This is clear in the opening statement at paragraph 1.1 of the Statutory Guidance:
‘The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.’
3.1 Well-being duty
Underpinning all of the processes and duties that are set out in the Care Act 2014 is the well-being duty at section 1. When a local authority is carrying out a care and support function, or is making a decision in relation to a person requiring care, the local authority must explain how it has had regard for each of the aspects of well-being listed at section 1(2):
‘(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual’s contribution to society.’
A particular focus on how a person with NRPF’s social and economic well-being, and suitability of living accommodation, impacts on their physical and mental health, and emotional well-being, will be necessary. Their immigration status will mean that they are unable to access welfare benefits, are likely to have insecure or no housing, and in some instances will not be able to work or access other services. Failure to have proper regard to considering this within assessments or when identifying what advice and information should be provided to a person with NRPF who is not eligible for care and support, is likely to be unlawful.
3.2 Duty to assess
Section 9 of the Care Act 2014 sets out the local authority’s duty to undertake a needs assessment for a person in need of care and support:
‘(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
- whether the adult does have needs for care and support, and
- if the adult does, what those needs are
(3) The duty to carry out a needs assessment applies regardless of the authority’s view of—
- the level of the adult’s needs for care and support, or
- the level of the adult’s financial resources.’
The threshold for triggering an assessment is therefore very low. Where there is evidence of a possible health and/or social care need, it is likely that this test will be met and the local authority will be required to undertake an assessment, even if it is suspected that a person may not have eligible care and support needs. A person who does not have eligible needs will still be entitled under to receive some tailored help, which may be limited to the information and advice necessary to reduce, prevent and delay current and future needs. For a person with NRPF, who may not have accessed services previously, this is an opportunity to obtain essential information and advice, even if they are not eligible for the provision of services.
3.3 Needs assessment
Section 9 of the Care Act 2014 and the Care and Support (Assessment) Regulations 2014 set out further requirements for the needs assessment, and must be read in conjunction with chapter 6 of the Statutory Guidance.
Prior to determining eligibility for care and support, the needs assessment must identify the following:
- The person’s care and support needs
- The impact of the person’s needs for care and support on all aspects of well-being
- The outcomes that the person wants to achieve
- How, and to what extent, the provision of care and support could contribute to the achievement of those outcomes
The needs assessment must comprise of an analysis of the information which has been gathered in order to draw the necessary conclusions, and can be carried out in various ways, with the process being adapted to best fit with the person’s needs, wishes and goals. However, it must follow core statutory requirements, for example, the person requesting support, their carer, and any other person that they want to participate, must be involved in the needs assessment. When a person lacks capacity to ask the authority to involve another person, social services must ensure that any person who appears to be interested in the person’s welfare participates in the assessment.
When a person requires an independent advocate under section 67 of the Care Act, the advocate must be appointed prior to the needs assessment so that they are involved in the process from start to finish, otherwise the assessment may be unlawful. In the case of SG v London Borough of Haringey (2015), the court found that the needs assessment undertaken for an Afghan asylum seeker was flawed because it was unclear whether the outcome of the assessment had been prejudiced due to the absence of an advocate, and because SG was in no position to influence matters. SG had severe mental health problems including complex PTSD, insomnia, depression and anxiety, was illiterate and spoke no English. An advocate was only appointed following the assessment and the local authority was ordered to undertake a new assessment.
The Care and Support (Assessment) Regulations 2014 set out requirements regarding the staff who will be responsible for undertaking needs assessments:
‘5 (1) A local authority must ensure that any person (other than in the case of a supported self-assessment, the individual to whom it relates) carrying out an assessment—
- has the skills, knowledge and competence to carry out the assessment in question; and
- is appropriately trained.
(2) A local authority carrying out an assessment must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so.
(3) Such consultation may take place before, or during, the carrying out of the assessment.’
Local authorities must ensure that people with NRPF are identified at the point of referral and that practitioners who are responsible for these assessments have sufficient knowledge of how immigration status may impact on a person’s well-being, their support options and whether the exclusions to social services’ support apply. This may be more difficult to comply with for authorities that do not have specialist NRPF workers.
3.4 Care and support eligibility criteria
Once a person’s needs have been identified, the local authority must determine whether these meet the eligibility criteria in accordance with section 13(1) of the Care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2015. The regulations contain a three stage test:
‘(1) An adult’s needs meet the eligibility criteria if—
- the adult’s needs arise from or are related to a physical or mental impairment or illness;
- as a result of the adult’s needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and
- as a consequence there is, or is likely to be, a significant impact on the adult’s well-being.
(2) The specified outcomes are—
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of the adult’s home safely;
- maintaining a habitable home environment;
- developing and maintaining family or other personal relationships;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- carrying out any caring responsibilities the adult has for a child.
(3) For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult—
- is unable to achieve it without assistance;
- is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;
- is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or
- is able to achieve it without assistance but takes significantly longer than would normally be expected.
(4) Where the level of an adult’s needs fluctuates, in determining whether the adult’s needs meet the eligibility criteria, the local authority must take into account the adult’s circumstances over such period as it considers necessary to establish accurately the adult’s level of need.’
A ‘physical or mental impairment or illness’ can be interpreted quite broadly, as paragraph 6.104 of the Statutory Guidance states:
‘Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.’
When applying the eligibility regulations, the local authority must disregard the services the person is receiving, for example, care provided by a family member, in order to establish whether the person can achieve the specified outcomes.
The eligibility criteria include specified outcomes that are not related to basic care activities, for example, the maintenance of personal relationships and use of facilities in the community. It may therefore be possible for a person to have eligible needs that are not related to their ability to perform personal care activities. However, any eligible needs must arise from or be related to a physical or mental impairment or illness, rather than being the consequence of a person’s immigration status or lack of housing/funds. The assessment must therefore be very clear about how a person’s needs have arisen. There is a specific provision that prevents a local authority from being required to meet the needs of some groups of people with NRPF where their needs have arisen solely due to destitution.
3.4.1 Exception: needs arising solely from destitution
Section 21 of the Care Act 2014 prevents a local authority from meeting needs, or providing preventative assistance under section 2(1) to some people with NRPF:
‘(1 ) A local authority may not meet the needs for care and support of an adult to whom section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”) (exclusion from benefits) applies and whose needs for care and support have arisen solely—
- because the adult is destitute, or
- because of the physical effects, or anticipated physical effects, of being destitute.’
This exception only applies to people who are ‘subject to immigration control’:
|A non-EEA national who…||Examples|
|Requires leave to enter or remain in the UK but does not have it||
|Has leave to enter or remain in the UK which is subject to a condition that they have no recourse to public funds (NRPF)||
|Has leave to enter or remain in the UK that is subject to a maintenance undertaking||
This exception does not apply to EEA nationals or a person who has the right to reside as the family member of an EEA national.
The definition of destitution that is used when determining claims for asylum support is to be followed:
‘A person is destitute if—
- he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
- he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.’
The intention behind this provision is to clarify that local authorities are not required to provide support to an adult solely for the purpose of alleviating destitution when that person has no additional needs. For example, where a person cannot maintain a habitable home environment for no other reason than because they are homeless, that need has solely arisen due to their destitution, rather than because of a physical or mental impairment or illness. When no other care and support needs are identified in such a case, the local authority will not have a duty to meet their needs (including accommodation).
Proper consideration of the eligibility criteria will involve identifying what has given rise to a person’s particular need. Anyone who does not have any needs arising from or related to a physical or mental impairment, or illness, will not be eligible for care and support. For people who are ‘subject to immigration control’, it will also be necessary in the eligibility assessment to document whether the section 21 exception applies or not.