This chapter sets out the powers and duties that enable a local authority to provide accommodation to a person with no recourse to public funds in addition to those that are set out in the Care Act 2014. These powers would need to be considered when adult social care determine that the person does not have care and support needs. In order to provide a holistic response and ensure that all the available support options for an individual are considered, joint working between social care, the housing authority, and, in some cases, public health, will be required.
12.1 Provision of advice and information
A housing authority must provide free advice and information about the help that is available for people who are homeless or threatened with homelessness, which everyone in the area can access, including people who are ineligible for homelessness assistance under Part VII of the Housing Act 1996 due to their immigration status.
When a person is found to be ineligible for Part VII assistance, the housing authority must issue a ‘section 184’ decision letter that clearly explains why the person is not eligible. A person can request a review of the decision and may need to be signposted to a housing law specialist if they think that the decision may be incorrect.
When a person is found to be ineligible for Part VII assistance, the housing authority should not turn the person away without giving them appropriate signposting information, and/or making a referral to an alternative support service that the person is identified as being entitled to. For example, it may be necessary to refer the person to adult social care, Children’s Services, Migrant Help to access Home Office support, or accommodation provided by the voluntary or community sector.
The Homelessness Code of Guidance for local authorities states:
3.1 Housing authorities have a duty to provide or secure the provision of advice and information about homelessness and the prevention of homelessness, free of charge. These services will form part of the offer to applicants who are also owed other duties under Part 7, for example the prevention and relief duties. They must also be available to any other person in their district, including people who are not eligible for further homelessness services as a result of their immigration status. The provision of up to date, comprehensive, tailored advice and information will play an important part in delivering the housing authority’s strategy for preventing homelessness.
3.2 Housing authorities may wish to consider providing information for those who are ineligible for further homelessness services on how to access any other assistance available in the area, for example through charitable or faith groups.
7.2 Housing authorities have a duty to provide or secure the provision of advice and information about homelessness and the prevention of homelessness, free of charge which must be available to any person in their district. All applicants, including those who are ineligible as a result of their immigration status, will be able to access this form of assistance from the housing authority. Housing authorities should refer applicants to appropriate support which they may be entitled to where relevant.
12.2 Families with a child under 18
The local authority can provide accommodation and financial support to a family with no recourse to public funds under section 17 of the Children Act 1989. A child will be in need if they are homeless or their parents do not have sufficient resources to be able to provide for their housing and/or basic living needs. Accommodation and financial support can be provided to the family as a whole.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies to the provision of accommodation and financial support to a family under section 17. Therefore, when a parent is without lawful immigration status, Children’s Services will also undertake a human rights assessment in addition to the child in need assessment. For more information about Schedule 3, see section 3.4.
A referral to Children’s Services (or the No Recourse to Public Funds team) would need to be made to request a child in need assessment. Accommodation can be provided by Children’s Services pending the outcome of the needs assessment. For more information, see the NRPF Network practice guidance: Assessing and supporting families with no recourse to public funds.
12.3 Care leavers
It will be necessary to ask a young person who is under 25-years-old who has no recourse to public funds and is experiencing homelessness if they have previously been in local authority care, as this may be a route for them to access accommodation or assistance with accessing accommodation from a personal adviser. In such cases, a referral would need to be made to children’s social care at the local authority responsible for their care.
Local authorities are well known to care for unaccompanied asylum-seeking children but may also look after children who are following other immigration routes, including children who are European Economic Area (EEA) citizens or family members of EEA citizens.
When a former looked after child qualifies for leaving care support, Children’s Services will be required to provide accommodation and financial support if the young person’s immigration status prevents them from accessing benefits or housing assistance. Duties to provide such support are time-bound and are set out in the Children Act 1989.
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 age 25 when they are on a course of education or training (section 23CA)
- Personal adviser support from age 21 to 25 if the young person requests this (Section 23CZB)
Although adult asylum seekers who are destitute can access support from the Home Office, the responsibility to provide accommodation and financial support to a former looked after child 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 Appeal rights Exhausted. (See: SO v London Borough of Barking and Dagenham [2010] EWCA Civ 1101).
Department for Education guidance, extending personal adviser support to age 25, states that Section 23CZB does not introduce a duty to accommodate. Therefore, if a care leaver is age 21 to 25, they may only be able to get help from a personal adviser to access accommodation, rather than housing provided by children’s social care.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies to the provision of leaving care support and personal adviser assistance from age 21 to 25. Therefore, when a former looked after child turns 18 and is without lawful status, Children’s Services will undertake a human rights assessment. If leaving care duties are discharged before the young person has turned 21 or 25 on the basis that they can return to their country of origin to avoid destitution in the UK, the local authority that was responsible for providing leaving care services would need to review its human rights assessment if the young person’s circumstances subsequently change. For more information about human rights assessments, see section 3.4.
12.4 Adults without care needs who are homeless
The Government has committed to end rough sleeping by 2024 and has made funding available to councils for this purpose, including through the Rough Sleeping Accommodation Programme 2021-24. Mayoral officers, and regional and local government organisations may also have strategies in place to end rough sleeping, with financial investment in services being made in order to deliver this outcome.
This work builds on responses that were established during the Covid-19 public health emergency through ‘Everyone In’, when the Government instructed councils to provide accommodation to people who were at risk of rough sleeping, regardless of immigration status, in order to protect lives.
Despite the intent to end rough sleeping, the law with regards to immigration status has not changed and no recourse to public funds conditions continue to apply. Government guidance relating to providing support to non-UK nationals experiencing homelessness is clear that local authorities must decide what assistance can be provided to an individual based upon an assessment of the person’s immigration status, circumstances, and needs.
Local authorities are expected to consider all duties and powers (as outlined in this guidance) that may be available to them to accommodate a person who is ineligible for Part VII homelessness assistance. This includes ensuring that, when applicable, duties to provide accommodation under the Children Act 1989 and Care Act 2014 are enacted to support families, care leavers and adults with care and support needs. When such duties are not engaged, the local authority must consider other legal powers that may enable accommodation to be provided.
The Courts identified which legal powers a local authority could exercise at time of national emergency, in this case, the Covid-19 pandemic, to provide accommodation to a person who is ineligible for Part VII homelessness assistance and support under the Care Act 2014. These powers generally have limited scope outside of a public health emergency.
The powers identified by the Courts are:
- Section 2B National Health Service Act 2006
- Section 138 Local Government Act 1972
The Government has also advised housing authorities that section 1 of the Localism Act 2011 (the general power of competence) can be used in certain circumstances to provide shelter to non-UK nationals who are at risk of rough sleeping.
These powers cannot be used to simply circumvent immigration-related restrictions imposed on the provision of accommodation under other legislation, such as Part VII of the Housing Act 1996. Additionally, the local authority can take into account its available resources to determine whether these powers are exercised.
As grant funding targeted at responses to end rough sleeping has generally been provided to housing authorities, decisions regarding the exercise of these powers will usually fall to a housing needs or rough sleeper outreach service, rather than adult social care or a no recourse to public funds team. However, in order to provide a person-centred response, partnership working will be necessary between partnership working between departments and any external organisations engaged with the individual will be necessary and responsibilities may need to be defined.
There are clear benefits to individuals and communities when people who would otherwise be rough sleeping can be accommodated as part of a homelessness intervention. In the research report, Unlocking the door: a roadmap for supporting non-UK nationals facing homelessness in England, Homeless Link and the No Accommodation Network, make recommendations with regards to how local authorities can continue to support non-UK nationals at risk of rough sleeping beyond the Covid-19 pandemic. The report highlights the value that a period of stable accommodation provides, allowing a person to engage with services, including immigration advice, in order to establish a long-term solution to their homelessness and to address other support needs, such as those relating to mental and physical health, or drug and alcohol dependence.
At a strategic level, local authority departments (or two-tier authorities) may need to work together to establish whether any funding that is made available, such as through public health or out of hospital care/hospital discharge programmes, can be drawn on to meet the accommodation needs of certain groups with no recourse to public funds.
12.4.1 Section 2B National Health Service Act 2006
Under section 2B of the National Health Service Act 2006, the local authority has a target duty to take steps to improve the health of the people in its area. This can include providing:
Services or facilities for the prevention, diagnosis or treatment of illness
Assistance (including financial assistance) to help individuals to minimise any risks to health arising from their accommodation or environment
In the case of Ncube v Brighton and Hove City Council [2021] EWHC 578, the Court found that taking steps to improve the health of residents could include the provision of emergency accommodation to meet a public health need through ‘Everyone In’, or any future initiative intended to save lives. The Court also referred to other examples of when accommodation may be provided by a local authority to address a public health need, such as residential drug or alcohol treatment centres, in-patient mental health facilities, and seasonal death reduction initiatives, such as the severe weather protocol accommodation. These examples are specified in the Department of Health and Social Care local authority circular: public health ringfenced grant 2022 to 2023.
To engage section 2B, the local authority would need to be clear that it is seeking to meet a public health need (of an individual or its area’s general population) by providing accommodation and is not circumventing the limitations on providing accommodation to a person who is found to be ineligible for Part VII homelessness assistance under section 185 of the Housing Act 1996. When determining whether section 2B is engaged, the local authority can take into account its limited resources and any other support that is available, such as Home Office accommodation.
Outside of a public health emergency, section 2B may need to be considered in individual cases when a person with no recourse to public funds requires accommodation for public health reasons. For example, when a person needs accommodation in order to undertake a course of tuberculosis (TB) treatment whilst they are contagious. Some local authorities and Clinical Commissioning Groups (Integrated Health Boards) have established agreements to source and fund accommodation for this purpose when such a person does not qualify for care and support under the Care Act 2014. Examples of such arrangements and practical information can be found in the Public Health England guidance: tackling tuberculosis in under-served populations.
The provision of services relating to the treatment of Covid-19, TB, and other communicable diseases by a local authority exercising its public health functions under the National Health Services Act 2006 are exempt from overseas visitors’ charges.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not apply to support or assistance provided under section 2B of the National Health Service Act 2006 when a person is without lawful status in the UK. Therefore, provision of accommodation on this basis is not subject to a human rights assessment.
12.4.2 Section 138 Local Government Act 1972
Section 138 of the Local Government Act 1972 provides councils with a power to take action to avert, alleviate, or eradicate the effects or potential effects of an emergency or disaster that involves danger to life.
In Ncube v Brighton and Hove City Council, the Court found that section 138 will be engaged when the following four tests are met:
(a) There has been an emergency or disaster or it is imminent or there is reasonable ground for apprehending such an emergency or disaster;
(b) the type of disaster is one involving danger to life or property;
(c) if so, whether the Council is of opinion that it is likely to affect its area or some of its inhabitants;
(d) if so, the Council may incur such expenditure as they may consider necessary to avert, alleviate or eradicate its effects or potential effects. (Paragraph 46)
To engage section 138, the local authority would need to be clear that it is taking action to avert, alleviate, or eradicate the effects or potential effects of an emergency or disaster that involves danger to life by providing accommodation and is not circumventing the limitations on providing accommodation to a person who is found to be ineligible for Part VII homelessness assistance under section 185 of the Housing Act 1996. When determining whether section 138 is engaged, the local authority can take into account its limited resources and any other support that is available, such as Home Office accommodation.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not apply to support or assistance provided under section 138 of the Local Government Act 1972 when a person is without lawful status in the UK. Therefore, provision of accommodation on this basis is not subject to a human rights assessment.
12.4.3 Section 1 Localism Act 2011
Section 1 of the Localism Act 2011 (the general power of competence) provides a local authority with 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.
The Courts have found that the general power of competence does not offer a broad basis to provide accommodation to a person who is ineligible for Part VII homelessness assistance, due to section 185 of the Housing Act 1996 providing a pre-commencement limitation (before Section 1 Localism Act 2011 became law) on the provision of accommodation. (See: AR v London Borough of Hammersmith and Fulham [2018] EWHC 3453, R(Aburas) v Southwark & Ncube v Brighton and Hove Council)
In Ncube v Brighton and Hove City Council, the Court recognised that in individual cases, the general power of competence may be engaged to provide shelter when a local authority identifies that failure to do so would give rise to a breach of human rights due to the person’s particular circumstances.
In July 2021, the Department for Levelling Up, Housing and Communities issued guidance to housing authorities, advising that the general power of competence can be used to provide shelter to a non-UK national, but not replicate support to which they are barred by statute from providing, such as Part VII homelessness assistance. Local authorities can refer to this when determining what assistance can be provided to a non-UK national rough sleeper under section 1 of the Localism Act.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies when support or assistance can be provided under section 1 of the Localism Act to a person who is without lawful status in the UK or is in another excluded group. In such cases, where the local authority identifies that it would be necessary to use the general power of competence to provide shelter, or other support, to prevent a human rights breach, it must also consider the person’s ability to return to their country of origin to avoid destitution in the UK. The local authority will be prevented from providing support under section 1 of the Localism Act if the person can reasonably be expected to return to their country of origin. For more information about applying Schedule 3 see section 3.4.
When shelter is given to a person with no recourse to public funds, usually a form of financial support (subsistence) will need to be provided to meet the person’s basic living costs. However, a discretionary payment made by a council in England under section 1 of the Localism Act 2011 constitutes a ‘public fund’ for immigration purposes, and therefore cannot be provided to a person who is ‘subject to immigration control’ (i.e. a person with no lawful status or who has leave to remain that is subject to a ‘No Recourse to Public Funds’ condition). When shelter is provided to such a person, the local authority will need to consider how to administer any financial support or meet the person’s basic living needs in line with this restriction. For more information about which groups are ‘subject to immigration control’, see section 1.3.1.
12.4.4 Availability of alternative support
When considering whether the powers listed in this chapter can be used to provide accommodation to a person with no recourse to public funds, the local authority would need to identify whether the person has any alternative support options. Alternative support may be available from:
- The Home Office
- National Referral Mechanism
- Friends, family or the community
Home Office support
The Home Office can provide accommodation to a person who is destitution and is:
- Seeking asylum (section 95 of the Immigration and Asylum Act 1999)
- Appeal rights exhausted following an unsuccessful asylum claim (section 4 of the Immigration and Asylum Act 1999)
- Subject to immigration bail (has a BAIL 201 notice), such as a visa overstayer who has not claimed asylum (Schedule 10 of the Immigration Act 2016)
Home Office support can be applied for through Migrant Help. The Asylum Support Appeals Project can provide advice if a person is refused Home Office support.
As referrals to the Home Office for support can be subject to significant delays, it may be necessary to provide accommodation on a discretionary basis whilst this is being accessed and to proactively chase up the pending support application with the Home Office. The person could also be signposted to local organisations assisting asylum seekers and refugees, as they may be able to advocate for the individual.
See the NRPF Network website for more information about Home Office support.
National Referral Mechanism support
When a victim of trafficking or modern slavery has been referred to the National Referral Mechanism (NRM), they may be able to access accommodation and financial support from the Salvation Army or a partner organisation.
Support may be available for at least 45 days after they have received a reasonable grounds decision that recognises they are a potential victim of trafficking or modern slavery. If the person is destitute, the Salvation Army may be able to provide support before the reasonable grounds decision has been made. See the Salvation Army website for more information about support for survivors of modern slavery.
Support provided by friends, family or the community
When a person has lived in the UK for a significant time prior to requesting support from the local authority, 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, such as signposting to an immigration adviser.
It is also necessary to be mindful of other limitations, which prevent a person from being able to access housing in the private sector on affordability grounds or due to not having the right to rent. For example, a person with pre-settled status who is ineligible for Universal Credit or Housing Benefit may be in receipt of a disability benefit, such as a Personal Independence Payment, but this in itself would be insufficient to secure private rented accommodation or cover the person’s basic living needs in addition to meeting their disability-related needs. See the NRPF Network website for more information about the right to rent.
12.4.5 Good practice when providing accommodation on discretionary grounds
In the case of R(Cort) v London Borough of Lambeth [2022] EWHC 1085, the local authority was found to have acted unlawfully by failing to exercise its discretionary powers under section 138 of the Local Government Act 1972 and/or section 2B of the National Health Service Act 2006 in order to provide accommodation to a person with no recourse to public funds during the Covid-19 pandemic. The local authority acted unlawfully by failing to adopt any policy or criteria to set out how the ‘Everyone In’ policy was being interpreted and applied at a local level. This led to a flawed decision-making process and failure to take the ‘Everyone In’ policy properly into account.
The judgment provides useful guidance for local authorities, should a similar instruction or policy initiative to ‘Everyone In’ be implemented by government in future:
95. It seems to me that the requirements of local policy guidance / criteria for those who might make such an application following the launching of the Everyone in initiative in March 2020 did not constitute a big “ask”. It was incumbent on the Defendant authority to consider its own position in the light of the national exhortation to house all the street homeless, including those of NRPF.
96. A decision could have been made to the effect that no rough sleepers could be accommodated because there were simply no resources, despite funding. It is immaterial whether such a decision might have been reviewable on other grounds, but it would have amounted to a policy response. Equally, the council might have adopted a blanket response, which would have been acceptable, that all rough sleepers regardless of immigration status would be provided with emergency accommodation. Further, if the discretion would only be exercised in “exceptional circumstances” an applicant was entitled to know what those might be. All these approaches do not require an extensive statement of policy, but merely a short indication, either in a published minute of an appropriate council meeting or committee, or a leaflet made available through housing and charitable organisations.
When shelter or other support is provided to a person with no recourse to public funds on discretionary grounds, the local authority would need to be able to demonstrate that it has made a rational and fair decision. It would be good practice to advise the individual of:
- The legal basis for providing support
- Under what circumstances this might change
- What the local authority will do to assist the person to end their homelessness
- What is required of the person receiving support to achieve this
This would need to be confirmed in writing and explained using an interpreter, where required. If such support is being requested under a national policy initiative, the local authority must refer to its established policy or criteria, in line with R(Cort) v London Borough of Lambeth.
When accommodation is provided to a person with no recourse to public funds, the local authority will also need to ensure a form of financial (subsistence) support is provided to cover their basic living needs. Emergency options, such as food vouchers, may not fully meet the person’s needs if accommodation is likely to be provided for several weeks or months whilst their immigration matter is being resolved.
It will also be necessary to engage with individuals who are accommodated to identify and assist a person to achieve a long-term solution to their homelessness. In many cases, this will be achieved by a change of immigration status that enables the person to access public funds. For some European Economic Area nationals, access to benefits will be dependent on whether they can sustain employment and access to welfare rights advice is likely to be necessary. It will be necessary to identify what services, such as immigration advice, are available in the local area and consider how gaps can be met or capacity increased, utilising government funding where possible. For more information about pathways off support, see chapter 13.
