This chapter sets out some good practice points to follow when care and support is to be refused or withdrawn following a change of circumstances.
The Care Act 2014 requires a local authority to record the assessment decision in writing and clearly communicate the outcome to the person requesting support. It may be necessary to use an interpreter. This would apply when a person:
- is assessed as having no eligible needs under the Care Act, or following a review, no longer has eligible care and support needs, and the local authority has also decided not to use its discretionary powers under section 19(1) or section 1 of the Localism Act 2011 to provide housing; or
- is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and is to be refused support following a human rights assessment that concludes they can return to their country of origin to prevent a breach of human rights.
The assessment outcome should clearly state why the person is not eligible, or no longer eligible for support. Any adverse findings must be put to them so that they may have a chance to respond. Any new information that comes to light after the decision, or any alternative explanations must be considered by the local authority. It is good practice for conversations with the person to have already taken place to prepare them for such an outcome and what their options will be.
When a person with NRPF has been provided with accommodation pending the outcome of an assessment and this is to be withdrawn, reasonable notice must be given to allow them to make alternative arrangements. What constitutes reasonable notice will depend on the person’s circumstances, with 21 days being a reasonable minimum period.
When a person has another support option available to them, for example, Home Office asylum support, then it would be good practice for the local authority to support their application for this and liaise with the Home Office to chase up progress of the application through NRPF Connect to ensure this transfer happens as quickly as possible. Flexibility regarding the notice period may be required if there is a delay accessing such support.
9.1 Complying with the Care Act following a grant of leave to remain
Where social services are funding non-supported housing as part of a person with NRPF’s care and support plan, and a change in immigration status means that the person now has recourse to public funds, then assistance with approaching a housing authority and claiming benefits will need to be provided.
Section 23 of the Care Act 2014 does not allow the local authority to provide accommodation under the Care Act when it could otherwise be provided under the Housing Act 1996, so this transfer of responsibly must occur as soon possible after the person becomes eligible for housing assistance. It is also important that any care package being provided is not interrupted if the person moves into different accommodation. Delays in accessing mainstream benefits and housing often result in the local authority continuing to fund accommodation and subsistence support under social care legislation for several weeks after the person’s immigration matter has been resolved. Therefore, some flexibility may be required regarding the notice period that is given.
Additionally, section 6(4) of the Care Act requires local authorities to ensure that the departments exercising functions relating to people with needs for care and support and the housing department co-operate, in order to promote the well-being of people with needs for care and support. This means that the staff responsible for a person NRPF, who is being provided with non-supported accommodation under the Care Act, will need to work collaboratively with the housing department to ensure that this transition is undertaken without adversely affecting the person’s well-being.
9.2 People excluded from support
This section applies to people who are in a group excluded from support by Schedule 3 of the Nationality, Immigration and Asylum Act 2002). When the provision of care and support is being refused following a human rights assessment, which has determined that a person can return to their country of origin, then assistance with return must be offered. This could be provided by the Home Office or local authority.
It will normally be appropriate for the local authority to provide accommodation and financial support whilst return is being arranged. In an NRPF family case of R (O) v London Borough of Lambeth (2016), the Judge found that the local authority had made ‘sensible, humane and appropriate undertakings’ by providing assurances that if the parent signs a formal undertaking in which she accepts that she and her child can be returned to Nigeria, and takes steps to co-operate with the local authority in arranging a facilitated return, interim accommodation for a reasonable period pending the return would be provided.
Should a person refuse an offer of assistance with return to their country of origin and remain in the UK when they have no current immigration permission and no legal barrier preventing them from returning, they would need to be advised of the risks and difficulties of living in the UK unlawfully:
- The Home Office may undertake enforcement action to remove them from the UK.
- They will not have permission to work; working when a person has no immigration permission to do so is now a criminal offence.
- Private landlords will not be able to rent to, sub-let to or set up a paying lodging arrangement with a person who has no immigration permission.
- They will not be able to obtain many types of non-urgent NHS treatment unless they can provide full payment up front, including hospital treatment, some mental health and possibly even drug and alcohol services.
- They will not be able to open a bank account, may have any accounts held closed or frozen, and will be breaking the law if they drive, whether they hold a licence or not.
Where the local authority has lawfully determined that a person can freely return to their country of origin, but the person refuses to do so, the courts have found that any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.
However, people who are excluded from the services listed above are likely to be at risk of exploitation and safeguarding concerns may arise if they remain in the UK without support. As soon as the local authority is aware that its support is likely to be refused or terminated on the basis that a person can return to their country of origin, it will be important to liaise with the Home Office to establish if any plans have been made regarding return.
For more information, see section:
9.2.1 Home Office funded return
The Home Office can fund and arrange travel for people who wish to return to their country of origin, and some people can obtain additional assistance.
Any person who is living in the UK without immigration permission or has been refused permission to enter or stay in the UK can apply to undertake a voluntary return. This includes EEA nationals who are not exercising a right to reside.
The Home Office will organise and fund the flight, but will expect the person to arrange their own documentation if they do not already have this. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.
An assisted return involves the Home Office arranging and funding flights, a financial reintegration package and additional support on a case by case basis.
A single adult will be eligible for an assisted return if they:
- have claimed asylum and have a pending claim or appeal, or have been refused and have no further right to appeal, providing they have never previously withdrawn an asylum application;
- have a letter from UK Visas and Immigration (UKVI) at the Home Office confirming they are a victim of trafficking;
require more help with their return, for example, because they have a medical condition; or
- were previously granted temporary (‘discretionary’) leave to remain in the UK outside the Immigration Rules, which has expired.
However, the person will not be eligible for an assisted return if they:
- are currently being investigated by the police or detained by the Home Office;
- have been convicted of an immigration offence and given a deportation order;
- have already been given humanitarian protection,
indefinite leave to remain or refugee status;
- have been informed that they are a ‘third country case’; or
are a European Economic Area (EEA) or Swiss national (unless they have been confirmed to be a victim of trafficking).
A financial reintegration package may be available of up to £1500 for people who have been through the asylum system or up to £1000 for a vulnerable person.
The method by which this is provided depends on whether the country of return is part of the European Reintegration Network (ERIN), which currently includes: Afghanistan, Argentina, Bangladesh, Brazil, Cote d’Ivoire, Guinea (Conakry), Honduras, Iran, Iraq (KRG), Morocco, Nepal, Nigeria, Pakistan, Paraguay, Russian Federation, Senegal, Somalia North, Sri Lanka, Sudan and Ukraine. A person returning to an ERIN country package may receive some funds on a card which can be withdrawn as cash in the country of return, and then will receive payments for a specific item/purpose directly from a partner agency administering the programme on return.
A person returning to a country which is not part of the ERIN will receive the full amount on a card which can be withdrawn as cash in the country of return.
A person will usually only have one opportunity to apply for assisted return.
The Home Office administers all voluntary returns and although will be able to answer questions about the returns process, does not provide independent and confidential advice to people who are considering return.
Non-EEA nationals undertaking a voluntary return which is funded by the Home Office (with or without a reintegration package), will be subject to a re-entry ban of two or five years, depending on how long they were in the UK after being issued with a liability to removal notice or becoming appeal rights exhausted. Legal advice should be sought to establish how long the re-entry ban will apply.
Methods of contacting the Home Office:
- People can apply online or contact the helpline: 0300 004 0202
- Email: firstname.lastname@example.org
- Local Home Office Immigration Compliance and Enforcement Teams may facilitate voluntary returns involving EEA nationals
9.2.2 Local authority funded return
Local authorities have a power to fund a return to country of origin, although this stems from different legislation depending on the person’s nationality or immigration status.
For EEA nationals and people with refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide a power to:
- purchase travel tickets to enable the person to return to their country of origin, and
- provide time-bound interim accommodation pending the return to country of origin, but not cash payments.
Alternatively, national embassies may be able to assist with arranging return for EEA nationals.
For Non-EEA nationals and people with no current immigration permission, funding a return would be an appropriate use of the general power of competence set out in section 1 of the Localism Act 2011. Enabling a person to return to their country of origin would be an effective response to resolving their destitution in the UK when there is no duty to provide support.