This chapter sets out the additional considerations that may need to be made when a person with no recourse to public funds is providing care and requests assistance from the local authority.
8.1 Duty to provide care and support to a carer
The Care Act 2014 contains a duty to provide care and support to a person providing care to an adult. Sections 10(1) and (4) of the Care Act 2014 state that a carer’s assessment must be undertaken when there is an appearance of need, whether currently or in the future, and regardless of the level of need or the carer’s financial resources. A person requiring care and support and their carer may request a combined needs assessment.
Eligibility must be considered under the Care and Support (Eligibility Criteria) Regulations 2015 and the well-being duty also applies to carers. Under section 20(1) of the Care Act the local authority must meet a carer’s eligible needs for support, as set out in a care and support plan, and section 20(6) sets out a power to meet non-eligible needs. Ordinary residence requirements apply. Section 20(7) allows for a carer’s needs to be met by providing care and support to the person they are caring for, even if that person does not have eligible needs themselves.
Section 21(4) prevents local authorities from providing care and support to a person who is subject to immigration control in order to meet a carer’s needs for support, where the person’s needs for care and support have arisen solely due to destitution or the physical effects of destitution. Therefore, the immigration status of the person requiring care and support must be established to determine whether this may apply. For more information about the ‘destitution exception’ see section 4.5.
8.2 The carer’s immigration status
It will be necessary to establish the immigration status of a carer who requests care and support as early as possible in order to:
- Determine whether Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies, which may restrict the provision of care and support when a carer has no lawful status
- Consider whether a direct payment is an appropriate way of meeting the carer’s needs
- Consider whether it is appropriate to rely on a carer without a settled form of immigration permission to provide unpaid care to a person who is eligible for care and support
8.2.1 Schedule 3 Nationality, Immigration and Asylum Act 2002
The provision of any support or assistance to a carer under section 20 of the Care Act will be subject to a human rights assessment when the carer is without lawful status in the UK or is otherwise in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002.
This means that the local authority will only be able to meet a carer’s care and support needs when it has determined that the carer is unable to return to their country of origin to avoid a human rights breach in the UK. For example, a carer’s needs can be met if the carer has a pending immigration application or there is another barrier preventing them from leaving the UK. For more information about when Schedule 3 will apply to a carer and how to carry out a human rights assessment, see section 3.4.
Schedule 3 does not prevent the local authority from undertaking a carer’s needs assessment.
8.2.2 Direct payments
When the local authority has determined that it has a duty to meet a carer’s needs, or will exercise its power to meet needs on a discretionary basis, a direct payment can be provided if the carer requests this to arrange their own support.
There is nothing preventing the local authority from providing a direct payment to a carer who has no recourse to public funds, including to a carer who does not have any lawful status in the UK (when a human rights assessment has determined that the carer cannot reasonably be expected to return to their country of origin). However, the carer’s lack of lawful status may make it difficult for them to arrange their own support. For more information about direct payments, see section 5.5.
8.2.3 Providing unpaid care
Where a carer, who does not have a form of settled immigration permission, is providing unpaid care to a friend or family with care and support needs, the local authority will need to consider whether it is appropriate to rely on the carer being able to meet the person’s needs on a long-term basis. If so, it must regularly review the situation and consider how the person’s needs can be met should the carer’s circumstances suddenly change. For more information about friends and family care, see section 5.4.