This chapter sets out how an adult’s needs for care and support can be met when the local authority has a duty to meet eligible care and support needs under section 18 of the Care Act 2014 or has determined that the power under section 19(1) is engaged to meet non-eligible care and support needs. When a person with no recourse to public funds is experiencing homelessness, the local authority must consider whether accommodation is required to meet the person’s care and support needs.
5.1 How care and support needs can be met
When a person is assessed as having eligible care and support needs, engaging section 18(1) of the Care Act, the local authority must decide how it will meet the inividual’s needs. When section 19(1) is engaged, a person’s non-eligible care and support needs must be met in the same way as a person who has eligible care and support needs.
The local authority has a broad scope in terms of deciding how care and support needs can be met. Section 8(1) sets out some examples of what care and support can be provided:
(a) accommodation in a care home or in premises of some other type;
(b) care and support at home or in the community;
(c) counselling and other types of social work;
(d) goods and facilities;
(e) information, advice and advocacy.
The Care and Support Statutory Guidance states:
10.11 There are a number of broad options for how needs could be met, and the use of one or more of these will depend on the circumstances.
Section 8(2) of the Act gives some examples of ways of meeting needs, and would cover:
- the local authority directly providing some type of support, for example by providing a reablement or short-term respite service
- making a direct payment, which allows the person to purchase their own care and support
- some combination of the above, for example the local authority arranging a homecare service whilst also providing a direct payment to meet other needs
Chapter 10 of the Care and Support Statutory Guidance explains how care and support planning should be undertaken. The care and support plan must set out how a person’s needs will be met, taking into account the person’s wishes, needs, and aspirations.
When a person’s needs are met by pre-existing services or carers, the local authority must keep these arrangements under review. The local authority may need to consider a carer’s immigration status and their ability to provide ongoing care.
Section 22 specifies that the local authority cannot meet needs by providing or arranging any health service or facility, which the NHS is responsible for providing under the National Health Service Act 2006, such as continuing healthcare or funded nursing care. For more information about care provided by the NHS, see chapter 11.
5.2 Providing accommodation to meet needs
Adult social care has a duty to refer individuals to a housing authority when a person is at risk of homelessness within 56 days. This should be undertaken as soon as a person being assessed for care and support is identified as being homeless or at risk of homelessness. For more information about the duty to refer, see section 6.1.2.
Section 23 of the Care Act specifies that the local authority cannot provide anything under the Care Act that would normally be provided by a housing authority under the Housing Act 1996. This would include temporary accommodation for a person who is eligible for homelessness assistance under Part VII of the Housing Act 1996 when they do not require a type of residential care or supported living accommodation, which would normally be arranged by adult social care.
When a person has no recourse to public funds, they will be ineligible for assistance under part VII of the Housing Act 1996 and so will not be able to access temporary accommodation from the housing authority. Adult social care can, therefore, provide accommodation to meet the care and support needs of a person with no recourse to public funds when section 18 or 19(1) of the Care Act is engaged.
5.2.1 What type of accommodation can be provided?
Section 8(1) of the Care Act specifies that a person’s care and support needs can be met by the provision of any type of accommodation. Therefore, adult social care is not restricted to providing only residential care or supported accommodation under the Care Act.
Types of accommodation that are commonly provided to a person with no recourse to public funds, dependent on their needs, include:
- A residential placement
- Supported living accommodation
- ‘Ordinary’ temporary accommodation (TA), such as private rented or local authority TA
- A B&B/hotel placement
When a person’s care and support needs can be met in a community setting, ordinary housing may need to be sourced and funded by adult social care. As procuring temporary accommodation is not a usual social work function, managers will need to set up a process that social workers can follow to procure accommodation. Where possible, it is advisable to draw on the expertise of the housing department/authority for advice or assistance with securing suitable accommodation placements.
5.2.2 When can accommodation be provided to meet needs?
The Care Act does not contain a specific test to determine when accommodation can be provided to meet needs. Eligibility for care and support must be established by applying the eligibility criteria that is set out in the Care and Support (Eligibility Criteria) Regulations 2015. When applying the well-being duty, the suitability of a person’s accommodation will need to be considered. For more information about establishing eligibility for care and support, see section 4.1.
Local authorities will need to follow guidance that has been provided by the Courts on the questions of when a local authority can provide accommodation to meet a person’s care and support needs.
The Courts have found that:
- Although a need for accommodation in itself is not a care and support need, the provision of accommodation may be necessary in order to secure effective care and support for an eligible need, and must be considered when determining how to meet a person’s eligible needs. (See: Aburas v London Borough of Southwark)
- When accommodation-related needs are identified, the local authority must consider whether to provide accommodation. (See: R(SG) v London Borough of Haringey & Ors [2017] EWCA Civ 322)
- A person will have ‘accommodation-related’ care and support needs when the services they require can only be provided in a home or would be effectively useless if the person has no home. For example, when a person requires a carer to help them get dressed and washed, such assistance can only be provided in their home, so this would clearly be an accommodation-related need. (See: R(SG) v London Borough of Haringey [2015] EWHC 2579 & R(GS) v LB Camden [2016] EWHC 1762)
- Identifying whether a person has accommodation-related needs involves making a common sense judgment and making a decision by focusing on the person’s well-being, individual circumstances, and eligible needs for care and support. (See: R (SB & Anor) v London Borough Of Newham [2023] EWHC 2701)
- The availability of Home Office accommodation for a person who is seeking asylum cannot be considered. (See: R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129)
In the case of R (SB & Anor) v London Borough of Newham, the local authority identified that SB needed support, which was not being provided by their family carer, at home in order to meet their eligible needs. This included support to build confidence in using appliances in the kitchen and choosing healthy meals to prepare, and ongoing support to maintain a habitable home environment. The local authority concluded that the person did not have accommodation-related needs because they were seeking asylum and could access accommodation from the Home Office. The local authority was found to have acted unlawfully by directing SB to the Home Office for accommodation because it failed to properly consider that the person had accommodation-related needs, when it was clear from the needs assessment that they did.
When a person is identified as having accommodation-related needs, the failure to provide accommodation is likely to give rise to a breach of human rights if the person would otherwise experience a risk to their life (Article 2), inhuman or degrading treatment (Article 3), and/or a breach of their family or private life (Article 8).
If accommodation is not provided to a person who has no recourse to public funds and has been assessed as having eligible care and support needs, it will be necessary to clearly document the reasoning of this decision, setting out how the person’s eligible care and support needs can be effectively met without the provision of accommodation.
5.2.3 Home Office asylum accommodation
In case of R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129, the court confirmed that the local authority, rather than the Home Office, will be responsible for providing accommodation to a person seeking asylum who is assessed under the Care Act 2014 as having ‘accommodation-related’ care and support needs.
The High Court found that Croydon Council acted unlawfully by failing to provide accommodation to a person seeking asylum with care and support needs. The local authority was also found to have breached the claimant’s human rights by failing to provide suitable accommodation for seven months whilst he lived with his family in an asylum hostel.
The judge found that when an asylum seeker is assessed as having accommodation-related care and support needs, councils cannot consider the availability of Home Office asylum support when determining how to meet the person’s needs. In such cases, it will fall to the local authority (namely adult social care) to provide accommodation and financial support at a level that suitably meets the adult’s needs, even in instances when their asylum accommodation may arguably meet their needs.
R (TMX) v London borough of Croydon also demonstrates that when a local authority determines that it has a duty under the Care Act to provide accommodation and financial support to a person who is seeking asylum, support must be provided without delay when the person is homeless or is living in accommodation that is detrimental to their health and/or well-being. Such support can also be provided on an interim basis whilst a needs assessment is being undertaken. For more information about meeting urgent needs, see section 3.3.
The Home Office guidance, asylum seekers with care needs (last updated in August 2018) instructs Home Office staff that:
Local authorities (LA) are generally only expected to provide accommodation to asylum seekers if their assessment shows that the person needs the sort of residential care that LA adult services are required to provide. An asylum seeker who has care needs which can be appropriately addressed in asylum support accommodation, and is otherwise eligible, should be accommodated by the Home Office following a care assessment. (Page 8)
In the case of TMX v Croydon Council, the judge found that this Home Office guidance has no legal impact on the allocation of responsibilities to provide accommodation as this is determined in law.
The judge found that section 95 support is residual and cannot be provided by the Home Office when a person has a right to adequate accommodation under other legislation, such as the Care Act. The judge also found that R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, case law that pre-dates the Care Act, which placed the responsibility of providing accommodation under section 21 of the National Assistance Act 1948 to an asylum seeker in need of care and attention with the council rather than the Home Office, continues to apply.
Local authorities must therefore consider their obligations under the Care Act 2014 in the first instance.
5.2.4 National Referral Mechanism support
When a potential victim of trafficking or modern slavery is receiving accommodation through the National Referral Mechanism (NRM), it will be necessary to consider whether their care needs can be suitably met in the NRM accommodation. For example, it may be necessary to establish whether carers would be permitted to enter a safe house or whether any adaptations can be made in the accommodation, should these be required. If accommodation available through the NRM is not suitable to meet the person’s care and support needs, the local authority may need to provide alternative accommodation under the Care Act. For more information about NRM support, see section 12.4.4.
When a local authority provides accommodation to a victim of modern slavery who has care and support needs, the person should still be able to obtain a subsistence allowance and specialist support from their local NRM partner agency. The Salvation Army can be contacted in the first instance to find out what support is available.
For more information, see the government guidance: National referral mechanism guidance: adult (England and Wales).
5.2.5 Right to rent checks
Private landlords in England are required to carry out a right to rent check for all adults in a household when a property is being rented or sub-let, or when a person is a paying lodger. In some circumstances, housing associations will be required to undertake right to rent checks. A person will either have an unlimited right to rent, a time-limited right to rent, or no right to rent, depending on their immigration status. A person without leave to remain will usually have no right to rent, unless they are granted permission to rent by the Home Office.
The right to rent scheme does not prevent local authorities from providing a person with housing in the private rented sector to meet their care and support needs. The Home Office guidance, landlord’s guide to right to rent checks, states:
Accommodation arranged by local authorities
The following residential tenancy agreements are exempt from the scheme, where they are arranged by a local authority which is acting in response to:
•a statutory duty owed to an individual
•a relevant power with the intention of providing accommodation to a person who is homeless, or who is threatened with homelessnessThis includes instances where the person is to be placed into private rented property by the local authority.
In such circumstances, landlords should ask for written confirmation from the local authority that the authority is acting in response to a statutory duty and keep this on file.
Additionally, the following types of accommodation are exempt from right to rent checks:
- Care homes, hospitals, and hospices
- Accommodation arranged by the NHS as part of a package of continuing health care
- Hostels and refuges managed by a social landlord, voluntary organisation or charity, or where the operating costs are partly or fully provided by a local authority and it is managed on a non-commercial basis
5.3 Providing subsistence to meet needs
When a person with no recourse to public funds is provided with accommodation to meet their care and support needs, the local authority will usually need to provide them with financial support (subsistence payments).
It is up to each local authority to determine the amount of financial support that can be provided. The Care Act provides the local authority with a broad scope to meet a person’s needs, enabling financial support to be provided. A flexible approach would need to be undertaken to determine how much subsistence a person requires based on their individual needs. However, to ensure fairness and consistency, and to minimise the resources required to establish an appropriate level of financial support, a local authority may wish to set minimum rates to cover basic living costs. Such a policy must allow flexibility to meet a person’s additional needs. For example, if a person’s needs will be met by attending a day centre, but they are unable to travel by public transport or it is far away from their accommodation, the person may require additional funds to cover the extra cost of transportation.
When determining a minimum subsistence rate, the type of accommodation being provided is likely to be a relevant factor. For example, a person in residential care will have most of their basic needs met. In such cases, the local authority may decide to have regard to the weekly personal expenses allowance, which a person who is contributing to their care would usually be left with. Local authority circular LAC(DHSC)(2022)1 specifies that the personal expenses allowance for 2022-23 is currently £25.65 per week.
Basic subsistence rates that have been benchmarked against other support schemes, such as Home Office asylum support or benefits, will need to be reviewed in line with any increases. See the NRPF Network website for details of the current Home Office support rates.
A person with no recourse to public funds will be able to access free prescriptions, dental care, and sight tests if they meet one of the exemptions relating to age, pregnancy or medical condition. If none of the exemptions apply, they can apply to the NHS Low Income Scheme. They will need to provide evidence that they are receiving support from their local authority. See the NRPF Network website for more information about entitlement to free prescriptions.
5.4 Care provided by friends and family
Section 18(7) of the Care Act specifies that the local authority is not required to meet needs for care and support where it has determined that these are already being met by an unpaid carer and such an arrangement can continue.
The Care and Support Statutory Guidance states:
10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.
In many cases, relying on care provided by friends or family will be consistent with the person’s preferences and well-being, as well as being cost-effective for the local authority.
However, when a friend or family member, who does not have a form of settled immigration status, is providing care, there could be a risk that the caring relationship may break down at a future date, or even at short notice. For example, a person without leave to remain could be liable to enforcement action being undertaken against them by the Home Office, or a person who has limited leave to remain could overstay their visa or may not successfully extend their leave.
When a friend or family member is providing care, the immigration status of the carer will need to be taken into account to help inform the local authority’s decision about whether it can continue to rely on the carer’s help to meet the person’s needs. When a carer has no lawful status, or time-limited immigration permission, this does not prevent them from providing care. However, the local authority would need to ensure that the carer’s unsettled immigration status is noted in the care and support plan and is regularly reviewed. The person receiving care and support should be advised to contact their social worker as soon as they are aware of any changes that may impact on their carer’s ability to continue to provide them with care. A plan may need to be made setting out how the person’s needs will continue to be met should the carer’s ability to meet these abruptly end.
Friends and family members providing care may also require a carer’s assessment. If the carer has no lawful status, a human rights assessment will also be required to determine whether care and support (including a direct payment/ individual budget) can be provided. For more information about support for carers, see chapter 8.
5.5 Direct payments
Any person requiring care may request that they are given a direct payment to arrange their own care and support by employing a carer or using a home care agency.
When a person requests a direct payment, the local authority must make a decision whether to provide this in line with the Care and Support (Direct Payments) Regulations 2014 and Chapter 12 of the Care and Support Statutory Guidance. The Regulations do not prohibit the local authority from providing a direct payment to a person with no recourse to public funds.
When a person with no recourse to public funds is accommodated under the Care Act, usually their care and support will be arranged by the local authority. However, a person with no recourse to public funds who is receiving care and support in the community may request a direct payment to arrange their own care.
When a person decides to use a direct payment to employ a carer directly, they must register as an employer. In order to do this, they would need to have a bank account and a National Insurance number. They will also be required to undertake a right to work check on a prospective employee, in line with the government guidance: Right to work checks: an employer’s guide.
Therefore, when deciding whether to provide a person with a direct payment, the local authority may need to consider whether the person’s immigration status allows them to open a bank account or obtain a National Insurance number if they intend to employ a carer directly.
5.6 Financial assessments
When the local authority has determined that a person requires care and support, it will normally undertake a financial assessment to establish how much the person has to pay towards the cost of their care.
The Government has not made separate charging provisions for people who have no recourse to public funds or other non-UK nationals. Therefore, a financial assessment for a person with no recourse to public funds must be undertaken in the usual way, in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and chapter 8, Annex B and Annex C of the Care and Support Statutory Guidance. The local authority will decide whether to undertake a ‘light-touch’ or full financial assessment.
5.6.1 ‘Light-touch’ assessments
A ‘light-touch’ financial assessment involves treating the person as if a financial assessment had been carried out. This would normally apply when a person clearly has sufficient resources to fully fund their care or when an individual is in receipt of benefits and, therefore, would not be able to contribute towards their care and support costs.
When a person with no recourse to public funds is presenting as destitute and is, or would be, reliant on the local authority to provide accommodation and subsistence support, it would normally be appropriate to undertake a light-touch assessment. The person’s financial circumstances are likely to have already been considered if emergency accommodation has been provided pending the outcome of the needs assessment.
5.6.2 Full financial assessments
When a full financial assessment is undertaken the income of the person requiring care must be considered.
Annex B of the Care and Support Statutory Guidance states:
5) Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support.
A full financial assessment may be required when a person with no recourse to public funds is living with family members, has recently been working, or has recently entered the UK with a type of leave that is only issued by the Home Office when financial requirements are met.
For example, when a person obtains leave to enter the UK in order to visit, work, or study, or to join family members, they will usually have to satisfy maintenance requirements and may need to show that they have a minimum level of funds available to them to cover their accommodation and basic living costs. They will usually be subject to a No Recourse to Public Funds (NRPF) condition. In the case of a person who is granted indefinite leave to remain as an adult dependant relative, their sponsoring relative in the UK will have signed an undertaking as part of the visa application process in order to confirm that the person’s accommodation and basic living needs will be met for the first five years of their residence in the UK.
However, there is no requirement for a sponsoring family member to fund social care when a visa holder qualifies for care and support. Social care is not a ‘public fund’ for immigration purposes and the financial assessment must only take account of the resources of the person who is receiving care and support. Therefore, the local authority cannot expect a sponsoring family member, or the relative the person who requires care is joining, to cover the costs of care and support. Instead, the individual requiring care must be assessed in the usual way in line with the Regulations and statutory guidance.
The local authority may take into account any ‘notional income’ in its assessment, which is income that is available to the person that has not yet been applied for, such as a benefit. When a person is subject to a NRPF condition, they will not be able to claim most benefits, which can therefore not be relied on as notional income. See the NRPF Network website for more information about which benefits are ‘public funds’.
