This chapter sets out the initial considerations that will need to be made when a referral or request for care and support is made by a person who has no recourse to public funds.
It will be necessary to identify at the point of referral, or as early as possible, whether the person has (or appears to have) no recourse to public funds and whether they are destitute and/or experiencing homelessness. For more information about who has no recourse to public funds, see section 1.3.
When a referral or request for care and support is made by a person with no recourse to public funds, adult social care will need to establish the following:
- Does the local authority have a duty to assess need – i.e. does the person have ‘an appearance of need’?
- Which local authority will be responsible for meeting care and support needs?
- Is emergency accommodation required whilst initial enquiries and assessments are carried out?
- Is a human rights assessment required?
3.1 Does the local authority have a duty to assess need?
Section 9 of the Care Act 2014 sets out the local authority’s duty to undertake a needs assessment:
(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
(a) whether the adult does have needs for care and support, and
(b) if the adult does, what those needs are.
(3) The duty to carry out a needs assessment applies regardless of the authority’s view of—
(a) the level of the adult’s needs for care and support, or
(b) the level of the adult’s financial resources.
The threshold for triggering a needs assessment is low. Where there is evidence that a person may have a possible social care need, it is likely that this test will be met. Although it is helpful to evidence any physical, mental health, or medical condition that may give rise to a social care need, a formal diagnosis is not required.
When a person has an appearance of need, the local authority will be required to undertake an assessment regardless of whether the person may or may not meet the eligibility criteria. When an assessment concludes that a person does not have eligible needs, the local authority will need to consider whether any non-eligible care and support needs can be met under section 19(1). This decision will be particularly important when a person with non-eligible care and support needs is experiencing homelessness. Additionally, a person who does not have eligible needs will still be entitled to receive information and advice necessary to reduce, prevent and delay current and future needs. For a person with no recourse to public funds, who may not have previously accessed statutory services, this provides the local authority with an opportunity to signpost the person to relevant information and/or alternative support services.
A needs assessment can be undertaken regardless of which local authority will be responsible for meeting needs.
However, it is advisable to try and clarify at the outset which authority will be responsible for meeting needs, and where possible to refer directly to that authority.
3.2 Which local authority is responsible for meeting care and support needs?
Section 18(1) of the Care Act states that the local authority will have a duty to meet a person’s eligible needs for care and support when:
..the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.
The Care and Support Statutory Guidance states that when ordinary residence cannot immediately be established, the local authority to which the person has presented will be required to meet the person’s needs:
19.11 The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of residence subsequently. This is particularly the case where there may be a dispute between 2 or more local authorities.
When a person presents with an appearance of need, the local authority cannot refuse to undertake an assessment if their place of ordinary residence is in another local authority area. When a person’s place of ordinary residence is unclear, or likely to be disputed, the local authority should proceed with the needs assessment and approach the other local authority when the person’s needs have been assessed. However, where a person is very clearly ordinarily resident in another authority’s area, it may be possible, and more beneficial to the individual, to advise them to request a needs assessment from that authority in the first instance.
Should a dispute arise regarding a person’s place of ordinary residence, the local authorities concerned must follow the procedures set out in the Care and Support (Disputes Between Local Authorities) Regulations 2014 and take all reasonable steps to resolve the dispute between themselves. When ordinary residence is disputed, the Care and Support Statutory Guidance states:
19.77 ..It is critical that the person does not go without the care they need, should local authorities be in dispute. The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved. If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.
The term ‘ordinary residence’ is not defined in the Care Act, although the Act does specify when a person will be deemed to be ordinarily resident in a particular area when certain situations arise.
3.2.1 Establishing ordinary residence
The meaning of the term ‘ordinary residence’ is not defined in legislation but has been considered by the Courts, with the leading case being Shah v Barnet London Borough Council  UKHL 14. The general principal is that a person will be ordinarily resident in the area where they have voluntarily taken up residence for a settled purpose.
The Care and Support Statutory Guidance states:
19.15 Local authorities must always have regard to [Shah v London Borough of Barnet] when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.
In ordinary residence determination OR 9 2010, the Secretary of State for Health confirmed that a person’s immigration status was not relevant to the consideration of ordinary residence for the purposes of accessing community care services. Therefore, a person who does not have lawful status in the UK can be considered to be ordinarily resident.
For an adult who lacks capacity to decide where to live, or a looked after child who is transitioning to adult social care and other accommodation, the local authority will need to follow the Supreme Court’s findings in the case of R (Cornwall Council) v Secretary of State  UKSC 46, which have been incorporated into chapter 19 of the Care and Support Statutory Guidance.
3.2.2 No settled residence
People who are experiencing homelessness may not have a clear place of ordinary residence and instead can be deemed to have no settled residence. Although the Care and Support Statutory Guidance suggests such situation arises in rare circumstances, this is likely to apply when a person has no recourse to public funds and has been ‘sofa surfing’, rough sleeping, or has had precarious living arrangements that have frequently changed.
The Care and Support Statutory Guidance states:
19.43 Where doubts arise in respect of a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough, or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that local authorities conclude that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, a local authority may conclude the person to be of no settled residence.
19.44 Sections 18 and 20 of the Care Act make clear that local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.
19.45 A local authority may conclude that a person arriving from abroad is of no settled residence, including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country. For further information on people returning to England after living abroad, see Annex H, paras. 31-34 (British citizens resuming permanent residence in England after a period abroad).
3.2.3 Urgent needs
Sections 19(3) and 20(6) provide the local authority with a power to meet the urgent needs of an adult with care and support needs, or carer, respectively. This means that when a person who is ordinarily resident in one local authority area becomes in urgent need of care or accommodation whilst they are in another local authority area, the second local authority will be able to meet the person’s needs. Appendix H of the Care and Support Statutory Guidance provides examples of when this could occur and information about communication and funding arrangements between the authorities concerned.
3.2.4 Out of area accommodation placements
Where a person is placed in ‘specified accommodation’ outside of the local authority’s area, section 39(1) stipulates that the placing authority will retain responsibility for meeting the person’s care and support needs, as the person will continue to be ordinarily resident in the placing authority’s area. Specified accommodation is defined in the Care Act as a nursing/care home, shared lives scheme, or supported living/extra care housing.
A person with no recourse to public funds may not require specified accommodation and instead may be provided with ordinary accommodation locally, such as a private tenancy or bed and breakfast placement. This placement may be outside of the local authority’s area due to the availability and affordability of such accommodation. When an adult with no recourse to public funds qualifies for care and support, it is established practice that the placing authority will retain responsibility of providing care and support (including accommodation) until that placement is lawfully discharged. For more information about when support can end, see chapter 6.
3.2.5 NHS accommodation
Section 39(5) of the Care Act requires a local authority to treat a person who is being provided with NHS accommodation under the National Health Service Act 2006 as ordinarily resident:
(a) in the area in which the adult was ordinarily resident immediately before the accommodation was provided, or
(b) if the adult was of no settled residence immediately before the accommodation was provided, in the area in which the adult was present at that time.
The Local Government Association and Association of Directors of Social Care Ordinary residence guide advises that, where the individual is of no settled residence, the local authority in whose area the hospital is situated will be the authority responsible for meeting the person’s needs on discharge. For more information about hospital discharge practice, see chapter 9.
3.2.6 Mental health aftercare
Section 117(3) of the Mental Health Act 1983 sets out which local authority will be responsible for jointly providing or commissioning aftercare services with the clinical commissioning group (integrated care board from July 2022) to a person who is being discharged from a period of detention under certain sections of the Mental Health Act.
Section 117(3) states that the relevant local authority is:
(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;
(c) in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
The position regarding responsibility for providing aftercare services to a person who is subsequently readmitted to hospital under the Mental Health Act has been considered by the Courts. The Court of Appeal found that the local authority where the person was ordinary resident prior to their first admission will remain responsible for the provision of aftercare services when a person is discharged following a subsequent readmission. (See: R (Worcestershire CC) v SSHSC  EWCA Civ 1957).
Worcestershire County Council has applied to the Supreme Court for permission to appeal this decision and the position of the Court of Appeal is not currently reflected in the Care and Support Statutory Guidance. Local authorities will instead need to refer to the statutory guidance: DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case.
For more information about aftercare, see chapter 10.
3.2.7 Detention and prison release
The Care Act and Care and Support Statutory Guidance address the question of ordinary residence when a person is detained in, or being released from, a prison. In the absence of any specific provisions in the Care Act relating to people who are detained at an Immigration Removal Centre, advice from the local authority’s legal team may need to be sought if any questions arise regarding a person’s place of ordinary residence on their release.
With regards to responsibility for meeting needs when a person is in prison, or is being released, the Care and Support Statutory Guidance states:
23.19 Since April 2015, any adult in a prison, a young offender institution, bail accommodation or an approved premise has been treated as if they are resident in the local authority area in which that prison, young offender institution, bail accommodation or approved premises is situated, making that local authority area responsible for meeting their care and support needs.
17.48 ..where a person requires a specified type of accommodation (see chapter 19 on ordinary residence) to be arranged to meet their eligible needs on release from prison, local authorities should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence.
17.49 However, determining an offender’s ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. For example, it may not be possible for an offender to return to their prior local authority area due to the history of their case and any risks associated with a return to that area.
17.50 In situations where an offender is likely to have needs for care and support services on release from prison or approved premises and their place of ordinary residence is unclear and/or they express an intention to settle in a new local authority area, the local authority to which they plan to move should take responsibility for carrying out the needs assessment.
3.2.8 Returning British citizens
Annex H of the Care and Support Statutory Guidance provides guidance about establishing ordinary residence for a British citizen who has returned to live in England after a period of residence abroad. Each case needs to be determined on an individual basis.
A returning British citizen will usually acquire ordinary residence in the area they are intending to live for a settled purpose, regardless of how long they have lived there If they do not intend to settle in the local authority’s area, they can be considered to have no settled residence and provided with services if they are in urgent need of care and support.
To determine which local authority will be responsible for meeting the needs of a carer, the place of ordinary residence of the person receiving care (or where they are present if they have no settled residence) must be established. Section 20(1) states that the same local authority will be responsible for meeting the needs of the person requiring care and their carer.
3.2.10 Continuity of care
When a person with no recourse to public funds who is receiving care and support moves between local authority areas of their own accord, the usual procedures regarding continuity of care must be followed. These are set out in sections 37 and 38 of the Care Act, the Care and Support (Continuity of Care) Regulations 2014, and section 20 of the Care and Support Statutory Guidance.
The continuity of care procedure will apply when a person seeking asylum, who is receiving a package of care whilst living in Home Office accommodation, is dispersed to accommodation in another local authority area. In such cases, the receiving authority would need to be notified and the case transferred in the usual way. For more information about providing care and support to people seeking asylum, see section 5.2.3.
3.3 Is emergency accommodation required?
Section 19(3) provides the local authority with a power to meet urgent needs for care and support before the relevant assessments have been completed:
A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—
(a) carried out a needs assessment or a financial assessment, or
(b) made a [eligibility] determination under section 13(1).
This power enables a local authority to provide interim accommodation and financial support to a person with no recourse to public funds who would otherwise be destitute or homeless whilst a needs assessment is being undertaken. Failure to exercise this power could result in a breach of Article 3 of the European Convention on Human Rights, where such a decision compels the person to sleep rough or be without shelter and funds. (See: R (Limbuela) v Secretary of State for the Home Department  UKHL 66).
Interim support can also be provided under section 19(3) when a person presents with urgent needs and their place of ordinary residence cannot be immediately established, or whilst a human rights assessment is being undertaken in addition to the needs assessment.
3.4 Is a human rights assessment required?
Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 place a bar on the provision of support or assistance under part one of the Care Act 2014 to a person who is ‘in breach of immigration laws’ (or is in another excluded group), unless such assistance is necessary to prevent a breach of human rights.
When Schedule 3 applies, the local authority will need to undertake a human rights assessment, in addition to the needs assessment, to determine whether care and support can be provided to the individual.
This section summarises when Schedule 3 applies. For more detailed information, see the NRPF Network human rights assessment template and accompanying practice guidance: When and how to conduct a human rights assessment.
3.4.1 Schedule 3 of the Nationality, Immigration and Asylum Act 2002
When a person who is ‘in breach of immigration laws’ qualifies for care and support, Schedule 3 requires the local authority to determine whether the person can be reasonably expected to return to their country of origin to avoid a breach of human rights arising from their destitution in the UK. In practice, this means that the local authority will need to undertake a human rights assessment in order to identify whether there are any barriers preventing the person from being able to return.
When a barrier to return is identified and the person qualifies for care and support, the bar on providing support can be lifted and the person’s care and support needs can be met.
If no barrier to return is identified and the local authority concludes that a person can freely return to their country of origin to avoid destitution in the UK, it will not be required to provide care and support, but, instead, can offer assistance with return and ongoing support whilst travel arrangements are made.
A human rights assessment is only required when the person:
- Is ‘in breach of immigration laws’ or is in another excluded group
- Is eligible for care and support under section 18 of the Care Act
- Has non-eligible care and support needs that the local authority is considering meeting under section 19(1), in the absence of a section 18 duty being engaged
3.4.2 Excluded groups
Schedule 3 will only apply when a person is in an excluded group. A person will be in an excluded group when they have one of the following types of immigration status:
- ‘In breach of immigration laws’ and not currently seeking asylum, such as a:
- Visa overstayer
- Illegal entrant
- Appeal Rights Exhausted (ARE) asylum seeker, who claimed asylum in-country, rather than at port of entry
- Refugee status granted by a European Economic Area State
- ARE asylum seeker who has failed to comply with removal directions
- ARE asylum seeking family with dependent children that has been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily (NB such certifications are not currently imposed by the Home Office)
Schedule 3 does not apply to a person who is seeking asylum or who is lawfully resident in the UK, such as a person with leave to remain that is subject to a ‘No Recourse to Public Funds’ (NRPF) condition or pre-settled status granted under the EU Settlement Scheme. When a person is lawfully present, or is seeking asylum, a human rights assessment will not be required. In such cases, eligibility for care and support will depend on the outcome of the needs assessment only.
3.4.3 Affected provisions of the Care Act 2014
Schedule 3 only applies to ‘support or assistance’ delivered under the following provisions of the Care Act:
- Duty to meet needs for care and support (section 18)
- Power to meet non-eligible care and support needs (section 19(1))
- Duty and power to meet a carer’s needs for support (section 20)
Schedule 3 does not prevent a local authority from:
- Undertaking a needs assessment (section 9) or carers needs assessment (section 10)
- Meeting urgent needs for care and support whilst assessments are being undertaken (section 19(3))
- Undertaking its general duties with regards to providing information and advice (section 4) or prevention (section 2)
3.4.4 Human rights assessments
In practice, a human rights assessment is usually undertaken after emergency support has been provided or following a change to the person’s immigration position. In such cases the local authority will establish whether care and support can continue to be provided to a person who is in an excluded group, rather than to determine eligibility for assistance when the person initially requests this.
When a person is in an excluded group and is assessed as having eligible care and support needs, engaging section 18 of the Care Act, the local authority must undertake a human rights assessment to determine whether the bar on the provision of care and support can be lifted.
When section 18 is not engaged, but the person is assessed as having non-eligible care and support needs, the local authority must consider whether to exercise its discretion to provide care and support under section 19(1) of the Care Act. Where such a person is ‘in breach of immigration laws’ and would otherwise be destitute and/or homeless, a human rights assessment must be undertaken to establish:
- Whether there are any other sources of support or assistance available in the UK, such as Home Office asylum support, and, if not,
- 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
A human rights assessment therefore forms part of the local authority’s decision-making when it is establishing whether section 19(1) is engaged to provide a person with accommodation to meet non-eligible care and support needs. (See: R(Aburas) v London Borough of Southwark  EWHC 2754). For more information about meeting non-eligible care and support needs, see section 4.4.
If the local authority establishes, following a needs assessment, that the adult does not have any care and support needs, there is no requirement to carry out a human rights assessment and the person will need to be signposted or referred to alternative services if they are destitute and/or experiencing homelessness. For more information about alternative support options, see chapter 12.
3.4.5 Checking immigration status
Not knowing the person’s immigration status does not prevent the local authority from undertaking a needs assessment and/or meeting urgent needs for care and support. However, when a person requests care and support, their nationality and immigration status will need to be established in order to:
Ascertain whether the person has (or appears to have) no recourse to public funds and therefore may require accommodation and financial support if they are destitute or experiencing homelessness.
Identify whether Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies and if so, whether there is an outstanding immigration claim, appeal or other legal action.
The local authority can obtain immigration information directly from the Home Office in one of the following ways:
- By using NRPF Connect to monitor caseloads, prioritise cases and obtain relevant immigration status information from the Home Office within agreed timescales.
- By contacting the Home Office Status, Verification, Enquires and Checking email service at: IE-CAS@homeoffice.gov.uk (if NRPF Connect is not subscribed to)
It is advisable to check any information obtained from the Home Office with the person directly and/or their legal representative in case a new application or appeal is being prepared or has been recently submitted but has not been recorded on Home Office systems.