This chapter highlights some considerations that must be made relating to the nationality and immigration status of a carer who requests assistance under the Care Act 2014.
The Care Act contains a duty to provide care and support to a person providing care to an adult. Sections 10(1) and (4) 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. The Statutory Guidance confirms, at paragraph 6.74, that a person requiring care and support and their carer may have a combined needs assessment.
Eligibility must be considered under the Care and Support (Eligibility Criteria) Regulations 2015 and the well-being duty also applies. 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.
The immigration status of the carer must also be established at the point of referral because the provision of any support and or assistance to carers is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002. This means that the local authority will only have a duty, or be able to use its discretionary power, to meet a carer’s care and support needs if this is necessary to prevent a breach of the carer’s human rights or rights under EU treaties. A human rights assessment would need to be carried to establish whether a carer’s needs for support can be met when the exclusion applies.
Carers have a right to request that the local authority meets some or all of such needs by giving them a direct payment, which will give them control over how their support is provided. There is nothing prohibiting the local authority from providing a direct payment to a carer who does not have any current immigration permission, where the local authority has undertaken a human rights assessment that concludes that carer’s support must be provided to prevent a breach of their human rights or EU treaty rights, for example, because they have a pending immigration application. However, in such instances the local authority will need to consider whether it is appropriate to rely on such a person to provide unpaid care given that their long term future in the UK is uncertain.
For more information, see sections: