This chapter sets out how an adult’s needs should be assessed and eligibility for care and support determined under the Care Act 2014 when a person has no recourse to public funds.
4.1 Well-being duty
Section 1 of the Care Act requires the local authority to explain how it has had regard for a person’s well-being when it is carrying out a care and support function or is making a decision in relation to a person requiring care and support.
Section 1(2) requires the following aspects of well-being to be considered:
(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.
When a person has no recourse to public funds and is experiencing homelessness, it will be necessary to pay particular attention to their social and economic well-being, suitability of living accommodation, and physical and mental health and emotional well-being. The person’s immigration status may mean that they are unable to access benefits, are likely to have insecure housing or be at risk of homelessness, and, in some instances, will not be able to work or access other services.
Being in a precarious financial and/or immigration position can leave a person at risk of exploitation or domestic abuse. Consideration may need to be given about whether any safeguarding action needs to be undertaken if a person is a victim of such behaviour. For more information about adult safeguarding, see chapter 7.
4.2 Needs assessment
The process for undertaking a needs assessment is set out at section 9 of the Care Act, the Care and Support (Assessment) Regulations 2014, and chapter 6 of the Care and Support Statutory Guidance. The assessment process must be followed in the usual way when a person has no recourse to public funds.
4.2.1 Who can be involved in the needs assessment?
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 for another person to be involved, the local authority must ensure that any person who appears to be interested in the person’s welfare participates in the assessment.
Section 67 of the Care Act requires the local authority to arrange for an independent advocate to represent and support the adult when it considers that the person would experience substantial difficulty in doing one or more of the following if an independent advocate was not available:
- Understanding relevant information
- Retaining that information
- Using or weighing that information as part of the process of being involved
- Communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means)
When a person requires an independent advocate, the advocate must be appointed prior to the needs assessment being undertaken so that they are involved in the process from start to finish, otherwise the assessment may be unlawful. In the case of R(SG) v London Borough of Haringey [2015] EWHC 2579 (Admin), the Court found that a needs assessment undertaken for a person seeking asylum 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 after the assessment had been completed, so the local authority was ordered to undertake a new assessment.
4.2.2 Who can carry out a needs assessment?
Regulation 5 of the Care and Support (Assessment) Regulations requires the local authority to ensure that the person undertaking the needs assessment has the skills, knowledge and competence to carry out the assessment and is appropriately trained. The local authority may also be required to consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assesses.
Social workers who are undertaking needs assessments for adults with no recourse to public funds must have an awareness of how an individual’s access to benefits, housing and other services may impact on their care and support needs. Managers will need to ensure that staff are aware of where they can obtain further information, such as from the NRPF Network website.
4.2.3 How long should a needs assessment take?
Neither the Care Act or the Care and Support (Assessment) Regulations specify a timeframe for completing a needs assessment. However, the Care and Support Statutory Guidance states:
6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.
The local authority may have already provided emergency accommodation, or be in the position of having to imminently enact this power, to a person with no recourse to public funds whilst their needs assessment is being undertaken. Therefore, it will be in the interests of all parties for the assessment to be concluded as soon as possible to clarify the person’s accommodation options, including whether ongoing support under the Care Act 2014 must be provided.
4.2.4 What will a needs assessment consider?
Section 9(4) of the Care Act specifies that 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 wellbeing
- 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 local authority must assess all of the person’s needs arising from their own identity and characteristics, regardless of whether they are being met at the time of the assessment. (See: R(Antoniak) v Westminster City Council [2019] EWHC 3465)
4.2.5 What are ‘care and support needs’?
The Courts have considered the meaning of the term ‘care and support needs’ in several cases involving people with no recourse to public funds and have generally concluded that this needs to be read in line with the accepted interpretation of a ‘need for care and attention’. ‘A need for care and attention’ applied when eligibility for accommodation was established under section 21 of the National Assistance Act 1948 – legislation that has been repealed and replaced by the Care Act 2014.
R(Aburas) v London Borough of Southwark [2019] EWHC 2754 is the most recent case where the Court considered the term ‘care and support needs’. The Court described needs for care and support as ‘looked-after needs’, in line with the way that a need for ‘care and attention’ had been defined by the courts in R(M) v Slough BC [2008] UKHL 52:
The natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. (Paragraph 33)
By applying this interpretation, the Court found that when a person’s need is only for accommodation and/or financial support they will not be considered to have care and support needs. (Paragraph 18)
Mr Aburas submitted that he was in need of social worker support in order to take medication and access food. However, the evidence provided to the Court did not establish that Mr Aburas needed the support of a social worker in order to take medication or prompt him to eat, or that missing his medication would give rise to serious suffering. The Court upheld the local authority’s decision that Mr Aburas had no relevant needs for care and support.
4.3 Care and support eligibility criteria
When the local authority has identified that a person has care and support needs, it must then determine whether the person’s needs meet the eligibility criteria, in accordance with section 13(1) of the Care Act and the Care and Support (Eligibility Criteria) Regulations 2015. When the eligibility criteria are met, section 18 of the Care Act will be engaged and the local authority will have a duty to meet the person’s eligible care and support needs.
The Care and Support (Eligibility Criteria) Regulations 2015 set out the following three stage eligibility test:
2(1) An adult’s needs meet the eligibility criteria if—
(a) the adult’s needs arise from or are related to a physical or mental impairment or illness;
(b) 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
(c) as a consequence there is, or is likely to be, a significant impact on the adult’s well-being.(2) The specified outcomes are—
(a) managing and maintaining nutrition;
(b) maintaining personal hygiene;
(c) managing toilet needs;
(d) being appropriately clothed;
(e) being able to make use of the adult’s home safely;
(f) maintaining a habitable home environment;
(g) developing and maintaining family or other personal relationships;
(h) accessing and engaging in work, training, education or volunteering;
(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
(j) 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—
(a) is unable to achieve it without assistance;
(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;
(c) 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
(d) 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.
The Care and Support Statutory Guidance specifies that a ‘physical or mental impairment or illness’ can be interpreted broadly:
6.104…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.
In order to establish whether the person can achieve the specified outcomes, any services the person is currently receiving must be disregarded. (GS v London Borough of Camden [2016] EWHC 1762, paragraph 38)
However, any care provided by friends or family, or other services the person is receiving, may be taken into consideration when the local authority determines how eligible needs can be met. For more information about friends and family care, see section 5.4.
An eligible need must arise from, or be related to, a physical or mental impairment or illness, rather than be the consequence of a person’s lack of access to housing or funds. For example, if a person is unable to maintain a habitable home environment solely because they lack accommodation, that would not be an eligible need. However, if the person is unable to maintain a habitable home environment because a physical impairment means they cannot manage this without assistance, this would be an eligible need, regardless of whether they currently have accommodation available to them.
Although a need for accommodation in itself would not be a care and support need, the provision of accommodation may be necessary in order to secure effective care and support for an eligible need. The local authority must therefore consider whether accommodation is required when it determines how to meet a person’s eligible needs. (See: R(Aburas) v London Borough of Southwark).
When a person is ‘subject to immigration control’, the local authority will have no duty to meet needs for care and support that have arisen solely due to destitution of the effects of destitution, so must also consider whether this applies in the assessment. For more information, see section 4.5.
4.4 Power to meet non-eligible needs
When a local authority determines that a person does not have eligible care and support needs, the duty to meet needs under section 18 of the Care Act will not be engaged. However, the local authority must consider whether the power at section 19(1) is engaged to meet non-eligible care and support needs.
Section 19(1) enables the local authority to provide accommodation to a person with no recourse to public funds whose care and support needs do not meet the eligibility threshold, where failing to meet the individual’s care and support needs could give rise to a breach of human rights. Therefore, section 19 (1) provides the local authority with a means of intervening to prevent needs from becoming more exacerbated as a result of homelessness when a person has no recourse to public funds and limited housing options available to them.
A decision about whether to engage this power will need to be made on a case-by-case basis, taking into account:
- The individual’s circumstances
- The availability of alternative support
- When they are without lawful status (or are in another group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002), whether the person can avoid destitution in the UK by returning to their country of origin
4.4.1 Determining whether section 19(1) applies
Section 19(1) of the Care Act contains a discretionary power to meet non-eligible care and support needs:
(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—
(a) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and
(b)the authority is satisfied that it is not required to meet the adult’s needs under section 18.
The Care and Support Statutory Guidance states:
10.28 Where the local authority is not required to meet needs, it nonetheless may use its powers to meet any other needs. This may include, for example, meeting needs which are not ‘eligible’ (for example, those which do not meet the eligibility criteria), or meeting eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area). Where the local authority exercises such a power to meet other needs, the same duties would apply regarding the next steps, and therefore a plan must be provided.
Additionally, a local authority must comply with the following sections of the Human Rights Act 1998:
3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
6(1) It is unlawful for a public authority to act in a way which is incompatible with a person’s Convention right.
‘Convention rights’ refer to the human rights set out in the European Convention on Human Rights. For example:
- Article 2: the right to life
- Article 3: the right to be free from torture, inhuman or degrading treatment
- Article 8: the right to respect for family and private life
In the case of R(Aburas) v London Borough of Southwark, the Court provides guidance at paragraph 10 as to how a local authority should determine whether section 19(1) is engaged and sets out how a local authority’s human rights obligations interact with the Care Act.
In summary, in order to determine whether section 19(1) is engaged to meet non-eligible care and support needs by providing accommodation, the local authority would need to:
- Identify any ‘non-eligible’ care and support needs
- Identify whether failing to provide care and support would give rise to a breach of human rights
- Undertake a human rights assessment considering the person’s ability to return to their country of origin (when the person is ‘in breach of immigration laws’ or is in another excluded group)
(1) Identify any ‘non-eligible’ care and support needs
Firstly, the local authority would need to identify whether the person has a need for care and support, which is not an ‘eligible’ need, and therefore does not engage the section 18(1) duty to meet needs. The Court suggests examples of a ‘non-eligible’ need include where a person’s needs do not relate to a prescribed specified outcome of the eligibility criteria or leave the person seriously unable to achieve one but not two specified outcomes. (Paragraph 10(i))
If a person does not have any care and support needs or they are a person ‘subject to immigration control’ who has care and support needs that have arisen solely from destitution or the actual or anticipated effects of destitution, section 19(1) cannot be engaged to provide accommodation, and alternative support options would need to be considered. For more information about other types of support, see chapter 12.
(2) Identify whether failing to provide care and support would give rise to a breach of human rights
When a ‘non-eligible’ need has been identified, the local authority must consider whether the denial of care and support would give rise to a breach of human rights. When a potential breach of human rights is identified, section 19(1) imposes a duty in order to secure a human rights-compatible interpretation of the Care Act. The failure to exercise section 19(1) by denying care and support in such circumstances, would be in breach of sections 3 and 6 of the Human Rights Act 1998.
When considering whether there may be a human rights breach, the local authority will need to consider whether there is a breach of Article 3 by asking the following question:
…is there an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide accommodation so as to secure the support of a social worker? (Paragraph 12)
Taking into account the Court’s guidance, the following scenarios may be examples of when section 19(1) could be engaged:
A person who is assessed as having a care and support need relating to an ongoing illness that requires regular treatment, which, if missed, could give rise cause serious suffering or a risk to the person’s life.
A person with a care and support need arising from a mental health condition, who would face serious suffering if they were to be homeless due to difficulties they would face as a result of their mental health.
The Human Rights Act 1998 does not in itself create a duty to provide support when a person is destitute or experiencing homeless, so if the person does not have any care and support needs, section 19(1) cannot be engaged to provide accommodation.
(3) Undertake a human rights assessment considering the person’s ability to return to their country of origin (where applicable)
When a person is ‘in breach of immigration laws’ (or is in another group excluded by Schedule 3 Nationality, Immigration and Asylum Act 2002), a human rights assessment will be an integral part of determining whether section 19(1) can be exercised to meet non-eligible care and support needs.
When Schedule 3 applies, the local authority must consider whether:
- There are any other sources of support or assistance available to the person in the UK, such as Home Office asylum support.
- If there are no other sources of support available in the UK, whether the person is able to return to their country of origin to avoid an Article 3 breach arising from their destitution in the UK.
The human rights assessment will lead to one of the following conclusions being made:
- The person can access other support in the UK, such as Home Office asylum support. In such cases, a transfer to that support would need to be arranged.
- There are no alternative support options in the UK but the person can return to their country of origin to avoid destitution, so accommodation and any other care and support could not be provided under section 19(1).
There are no alternative support options in the UK but there is a legal barrier or practical obstacle preventing the person from being able to return to their country of origin. In such cases, support can be provided under section 19(1), where this has been deemed necessary in line with steps one and two.
For more information about how to undertake a human rights assessment, see section 3.4. For more information about other sources of support that may need to be considered, see section 12.4.4.
4.4.2 Expectant mothers
Prior to the Care Act coming into force, local authorities had a power under section 21(1)(aa) of the National Assistance Act 1948 to provide residential accommodation to expectant and nursing mothers who did not have any other needs for care and attention in addition to those associated with pregnancy or nursing a baby. There was no requirement for the pregnancy to be at a particular stage in order for accommodation to be provided on this basis. Section 21 of the National Assistance Act 1948 was repealed, following the implementation of the Care Act.
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. The Department of Health, Response to the consultation on draft regulations and guidance for implementation of Part 1 of the Care Act 2014, states:
.. the Department asked the public if they were satisfied that the eligibility regulations could also cover cases currently provided for under section 21 of the National Assistance Act 1948. The majority of respondents to this question were local authorities, who said they felt confident that the new regulations together with the powers in section 19 of the Care Act would mean people who currently have access to care and support would continue to be supported when the regulations and guidance take effect in April 2015. (Page 23)
When a pregnant woman with no recourse to public funds presents as destitute or at risk of homelessness, in the first instance, the local authority would need to undertake a needs assessment. If the local authority determines that the eligibility criteria are not met, it must consider whether accommodation can be provided under section 19(1), taking into account the factors set out in section 3.4.1 of this guidance, including whether other support may be available to the expectant mother.
Although the power to accommodate is set out in the Care Act, often Children’s Services, rather than adult social care will take responsibility for providing accommodation and financial support to a pregnant women with no recourse to public funds. A pre-birth assessment may need to be undertaken by Children’s Services and a child in need assessment will be required when the child is born, in order to determine whether accommodation and financial support can be provided to the family under section 17 Children Act 1989. As steps will also need to be taken to help the mother establish a long-term pathway to resolve her homelessness, it may be more efficient for Children’s Services to take ownership of the case before the child is born and more consistent for the mother to be assisted by the same team. For more information about pathways off support, see chapter 13.
4.4.3 Next steps when section 19(1) is not engaged
When the local authority decides that section 19(1) is not engaged to meet non-eligible care and support needs, the Care and Support Statutory Guidance specifies what must happen next:
10.29 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 website. 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.
When a person with no recourse to public funds is experiencing homelessness but cannot be provided with support by adult social care, it will be necessary to identify any alternative support options that the person could be signposted to and make any necessary referrals. Where emergency support has already been provided pending the outcome of the needs assessment it would be good practice to keep support ongoing until a transfer to any available alternative support has been made. For more information about alternative support options, see section 12.4.4.
4.5 Exception: needs arising solely from destitution
For some people with no recourse to public funds, the local authority will not be required to meet needs for care and support, where such needs have arisen solely due to destitution.
Section 21 of the Care Act prevents a local authority from meeting needs under sections 18 or 19, or providing preventative assistance under section 2(1) when a person is ‘subject to immigration control’:
(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—
(a)because the adult is destitute, or
(b)because of the physical effects, or anticipated physical effects, of being destitute.
This exception only applies to people who are ‘subject to immigration control’ under section 115 of the Immigration and Asylum Act 1999. A person will be ‘subject to immigration control’ when they have one of the following types of immigration status:
- Leave to enter or remain, which is subject to a ‘No Recourse to Public Funds’ (NRPF) condition
- Leave to remain that is subject to a maintenance undertaking
- Leave to enter or remain as a result of a pending immigration appeal
- No leave to enter or remain when the person is required to obtain this
For more information about people who are subject to immigration control, see section 1.3.1.
For the purpose of applying section 21 of the Care Act, destitution is defined under section 95(3) of the Immigration and Asylum Act 1999, as follows:
A person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
Section 21 clarifies that local authorities are not required to provide care and support to a person who is subject to immigration control solely for the purpose of alleviating destitution when that person has no additional care and support needs.
The needs assessment will have identified whether a person has care and support needs, rather than solely a need for accommodation and financial support. Proper consideration of the eligibility criteria will have involved identifying whether the person’s needs arise from, or are related to, a physical or mental impairment or illness.
Therefore, in most cases, section 21 is unlikely to affect the outcome of the needs and/or eligibility assessment.
