This chapter sets out what must be considered when a person with
NRPF is assessed as having eligible needs and the duty under section 18(1) of the Care Act 2014 to meet needs for care and support is engaged, unless the person is ‘subject to immigration control’ and their needs have arisen solely due to destitution.

Local authorities are given a broad scope when it comes to deciding how needs may be met, with section 8(1) of the Care Act setting out some examples of what may 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.’

Paragraph 10.31 of the Statutory Guidance confirms that a 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. The local authority will need to establish whether a preference forms part of a person’s needs and can refer to the High Court judgment of Davey v Oxfordshire County Council [2017] for further explanation of the difference between needs and wishes.

Needs may be met by services that a person is already receiving, but the local authority must keep these arrangements under review.

Section 22 of the Care Act does not permit the local authority to meet needs by providing or arranging any health service or facility which is required to be provided by the NHS under the National Health Services Act 2006. This demarcation between health and social care services is likely to become more significant for this client group following the introduction in 2017 of upfront charging for some people who are seeking certain types of non-urgent NHS treatment. People affected who are receiving care and support from a local authority may be refused non-urgent NHS hospital treatment and some community services. This leaves the local authority in a situation where the health needs of a person receiving care may remain untreated, but there appears to be a prohibition on funding this under the Care Act.

For more information, see section:

4.1 Care provided by friends and family

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. Paragraph 10.26 of the Statutory Guidance states:

‘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.’

When a friend or family member is providing care, then the immigration status of the carer will need to be taken into account to help inform the local authority’s decision about whether to continue to rely on the carer’s help to meet the person’s needs. 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, where a carer has no current immigration permission, the local authority would need to ensure that the situation is regularly reviewed, as such an arrangement could break down at short notice, for example, if the carer is detained or removed from the UK by the Home Office. The immigration status of a carer who has limited leave to remain may also change if a future application is unsuccessful, so this should be noted in the care plan.

The person receiving care should be advised to contact social services as soon as they are aware of a change of circumstance that may impact on their carer’s ability to continue to provide them with care.

Friends and family members providing care may also require a carer’s assessment, but for some carers, the provision of care and support (including a direct payment/ individual budget), will be subject to a human rights assessment if they are in an excluded group.

For more information, see section:

4.2 Direct payments

Any person requiring care may request that they are given a direct payment to arrange their own care and support. In such instances they would either use an agency or employ a carer directly. If they chose the latter option then they will need to register as an employer and must adhere to several requirements, including checking that the carer they employ has the right to work in the UK.

The Care and Support (Direct Payments) Regulations 2014 do not prohibit a local authority from providing a person with NRPF with a direct payment. Where a person with NRPF requires a care package only, for example, because they are living with family, it may be appropriate to provide a direct payment in order for them to employ a carer or use an agency to obtain home care. However, when accommodation is being provided under the Care Act, the care package will usually be arranged by social services.

If a person with NRPF requests a direct payment, then the local authority must decide whether to provide this based on the regulations and chapter 12 of the Statutory Guidance. Additional considerations may include the impact of any language barrier on the person being able to arrange their own care, and whether the person can open a bank account or obtain a National Insurance number, which may be needed to register as an employer.

4.3 Providing accommodation to meet needs

The local authority will need to consider whether a person, who is assessed as having eligible needs, can be provided with accommodation in order to meet their needs. It may be the case that residential care or supported accommodation is appropriate due to their identified needs. For people who do not require such types of accommodation, social services would normally need to make a referral to the local housing authority because section 23 of the Care Act 2014 prohibits housing to be provided when a person would be entitled to receive this under the Housing Act 1996.

As a person with NRPF would not be eligible for assistance under the Housing Act, and may have insecure or non-existent alternative housing options, social services will need to consider whether housing should be provided in order to meet the person’s needs for care and support, even though this could result in the local authority incurring significant costs. With homelessness increasing across the UK and destitute adults with NRPF facing significant service gaps, it remains essential that local authorities correctly consider whether accommodation can be provided in order to meet the care and support needs of this vulnerable group.

There is no specific test in the Care Act for determining when accommodation should be provided to meet needs; eligibility for support must be established by following the Care and Support (Eligibility Criteria) Regulations 2015. In practice this means that a person must require a certain level of care in order to be provided with accommodation to meet their needs.

In the absence of a specific test, and due to the serious consequences of not being able to access housing, it was not a surprise that the two of the initial legal challenges against local authority decisions made under the Care Act addressed the question of when accommodation can be provided: R(SG) v Haringey (2015) and R(GS) v Camden (2016).

The High Court found that a two-step approach is required to firstly identify accommodation-related needs and then secondly decide whether accommodation is required to meet those needs.

Step 1: Identify accommodation-related needs

In both R(SG) v Haringey (2015) and R(GS) v Camden (2016) the court confirmed that a need will be accommodation-related when the services required by the person can only be provided in a home or would be effectively useless if the person has no home.

Examples of accommodation-related needs:

  • When the person requires a carer to help them get dressed and washed.
  • Where a person, who cannot develop and maintain family relationships because they live far away and their illness or impairment makes travel very difficult for them, might need to move closer to their family if those difficulties cannot be overcome in any other way.

The local authority will need to clearly document whether a person’s needs can or cannot be effectively met without the provision of accommodation if the person does not have any housing available to them. For people with NRPF who have housing available, for example, they are staying with friends, or are living in Home Office asylum support accommodation, then the well-being duty requires consideration to be given to the suitability of their living accommodation.

Step 2: Decide whether accommodation is to be provided

The Court of Appeal in R(SG) v Haringey (2017) did not rule either way on the question of when accommodation-related needs are identified, whether this creates a duty or discretion to provide accommodation but local authorities must consider the Care Act and adhere to public law principles.

The Care Act is clear that it is for the local authority to decide what support or services are provided to each person who has eligible care and support needs, and that needs may be met by the provision of accommodation of any type.

Local authorities must not make a decision which is unlawful, unreasonable, irrational, or which is likely to lead to a breach of a person’s human rights. It is therefore difficult to envisage how a local authority would be able to lawfully refuse to provide accommodation when accommodation-related needs have been identified and the person has no housing available to them or does not have access to appropriate housing in which their needs can be suitably met.

4.3.1 Home Office asylum accommodation

In the case of R(SG) v Haringey (2015), the High Court was very clear that when a person is provided with asylum support accommodation by the Home Office then the local authority is still required to consider whether the person has accommodation-related needs. However, the court did not address the question of whether the local authority can take into account the availability of Home Office asylum accommodation when determining how to meet a person’s needs.

Prior to the Care Act 2014 coming into force, the case of R(Westminster City Council) v National Asylum Support Service (2002) clarified that, where the duty to provide accommodation was engaged under section 21(1A) of the National Assistance Act 1948, it would fall to social services to provide housing rather than the Home Office, because section 95 asylum support is a residual power that cannot be engaged when other support is available.

Section 21(1A) of the National Assistance Act 1948 contained a specific eligibility test giving rise to a duty to provide accommodation. As described above, the Care Act does not contain an equivalent provision, and the courts have not found that identifying accommodation-related needs creates a duty to provide accommodation. The application of R(Westminster City Council) v National Asylum Support Service (2002) therefore does not appear to directly translate to the decision of how a local authority should meet needs under the Care Act.

When an asylum seeker or refused asylum seeker has accommodation-related needs and is currently being housed by the Home Office, the local authority may wish to consider a number of factors when deciding whether accommodation should be provided to meet the asylum seeker’s needs:

  • The person’s wishes
  • The person’s well-being in relation to the suitability of their asylum accommodation
  • Whether the care and support required can be provided within that particular accommodation, e.g., some asylum accommodation providers reportedly will not permit registered carers to administer care in their properties
  • The local authority may not have any control over whether the person is moved to different accommodation, which could be in another area, risking a disruption of care and questions over continued responsibility to meet needs
  • The Home Office will terminate accommodation providing a notice period of 28 or 21 days, respectively when the person is no longer eligible for asylum support because they have been granted leave to remain or their claim has been refused

These matters must be considered and fully documented to explain why asylum accommodation is or is not being relied on to meet a person’s needs for care and support. Where it is determined that the asylum seeker’s needs can be met by remaining in Home Office accommodation, this decision must be Care Act compliant, for example, by promoting the person’s well-being.

4.3.2 Right to rent scheme

The government introduced right to rent checks in England on 1 February 2016, which prevent private landlords from renting a property to a non-EEA national who does not have any immigration permission to stay in the UK. Landlords, including those sub-letting properties and people who are accommodating paying lodgers, are required to conduct immigration status checks. The right to rent scheme has operated in the West Midlands (Birmingham, Wolverhampton, Dudley, Walsall and Sandwell) since 1 December 2014.

People without any current immigration permission will not have the right to rent unless the Home Office issues permission to rent when exceptional circumstances apply.

The right to rent scheme does not prevent local authorities from providing a person, who does not have the right to rent, with housing in the private rented sector to meet their care and support needs due to an exemption set out in the Immigration Act 2014, which is explained in the Home Office Code of Practice for landlords:

‘Residential tenancy agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a local authority which is acting in response to a statutory duty owed to an individual, or which is exercising a relevant power with the intention of providing accommodation to a person who is homeless, or who is threatened with homelessness, is exempt from the scheme. This includes instances where the occupier 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.’

Residential tenancies that grant a right of occupation in a hostel or refuge are also exempt from the right to rent checks when the hostel or refuge is managed by a social landlord, voluntary organisation or charity, or when it is not operated on a commercial basis and its operating costs are provided either wholly or in part by a government department or agency or a local authority.

The right to rent scheme does not prevent local authorities from providing housing in the private sector to people who do not have a right to rent where this is necessary to discharge duties under the Care Act 2014.

4.4 Providing subsistence to meet needs

When a person with NRPF does not have access to any financial support, the local authority may have to provide subsistence payments as part of the care plan to meet care and support needs. The type of accommodation that is provided to meet needs will impact on how much subsistence is also provided.

When deciding how much to provide to a person with NRPF who is living in residential care, the local authority may wish to refer to the weekly personal expenses allowance of £24.90, which a person who is required to pay for their care in a care home must be left with.

For people who are living in other types of accommodation, the local authority would need to be mindful of the broad scope it has to meet needs under the Care Act 2014 and should take a flexible approach to determine how much a person requires based on their individual needs. For example, a person may want to watch television and therefore need subsistence payments to cover a TV licence. If watching television is linked to meeting an identified need, rather than the because the person desires this, then is may be appropriate to ensure this is funded on top of subsistence paid to meet their basic living needs.

Local authorities may have regard to the principles established regarding subsistence payments to meet a child’s needs when families with NRPF are supported under section 17 of the Children Act 1989. In such cases the courts have found that payments must meet an individual child’s assessed needs, so must have a flexible approach if administering standard subsistence rates.

4.5 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 financial assessment must be compliant with section 17 of the Care Act 2014, the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Statutory Guidance.

The rules and regulations governing financial assessments are the same for all people regardless of their nationality or immigration status, so people with NRPF should be subject to the same assessment process as everyone else.

It is likely that a person with NRPF’s financial circumstances will have already been investigated to some extent in order to establish whether they require accommodation to be provided whilst the needs assessment is being carried out.

The local authority will need to determine whether to conduct a full financial assessment or a light touch assessment. Paragraph 8.22 of the Statutory Guidance suggests that a light touch financial assessment may be undertaken where a person is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs. This would also be a sensible approach when a person’s sole income is subsistence support provided by social services.

A full financial assessment is likely to be required when a person with NRPF is living with family members, has recently been working, or has recently entered the UK with a type of leave to enter that is only issued when financial requirements are met, for example, as a visitor or student.

A determination of a complaint made to the Local Government & Social Care Ombudsman in September 2016 provides some useful points to be mindful of in cases when care and support is provided to a person who has leave to remain or a European right to reside on the basis of being dependent on a family member.

When people who obtain leave to enter the UK in order to work or study bring their family members with them, they will have to satisfy maintenance requirements, usually by showing they have specified funds available to them. No maintenance undertaking is signed that binds the main applicant to providing support for their family members, unlike where a British Citizen applies for a parent, or other dependent adult relative, to settle permanently with them in the UK, and as part of the application must sign a maintenance undertaking. In such cases, the maintenance undertaking relates to the sponsor providing what would otherwise be covered by benefits and social housing, but does not include them being required to fund social services’ support should the relative require care. Therefore, it is incorrect to assume that people with leave as a dependant should have their care funded by their sponsoring family member.

The Ombudsman complaint was made against the London Borough of Richmond upon Thames by the father of an autistic adult, who had leave to remain with NRPF as the dependant of his father. His father had come to the UK to work for a multi-national company and the son was provided with a placement in a children’s home when his parents could not cope with his increasingly challenging behaviour. One year after becoming an adult, he was placed in a care home. After turning 18, whilst he was still in the children’s home, the council charged the son £32.95 per week towards his placement, which is what he would have been charged were he claiming Employment and Support Allowance (ESA). His father paid this as his son was unable to claim ESA or other benefits due to having the NRPF condition. The council later wrote to the father stating that he or his employer should pay the total cost of the placements since the son had become an adult, and that the father was responsible for this due to his son having leave to remain as a dependant. The Council also wrote to the Home Office informing them that they had concerns that the family had misrepresented their ability to support the son when they extended their leave to remain.

The LGO upheld the father’s complaint, making the following findings:

  • The Care and Support (Charging and Assessment of Resources) Regulations 2014 and Statutory Guidance are clear that the financial assessment must take account of the resources of the person receiving care services. There is no legal basis for charging anyone other than the person requiring care, so the council was at fault for charging the father for his son’s care. The government has not made separate charging provisions for people who are subject to different types of immigration status.
  • The Care Act Statutory Guidance allows local authorities to take account of ‘notional income’ in their assessments, including income that would be available which has not yet been applied for, but in this case the council was at fault for charging the son based on income that he could not receive due to his immigration status.

When determining responsibility for funding a person with NRPF’s care, this case highlights that a good understanding of entitlements is necessary and that a decision based on assumptions relating to a person’s immigration status should not be made, as there must be a legal basis for any course of action followed.