This chapter sets out what local authorities must consider when they suspect a person may be a victim of trafficking and modern slavery, or when a confirmed victim who has NRPF requests care and support or requires housing. Local authorities should also refer to the government information on modern slavery and new guidance from the Local Government Association.
12.1 Safeguarding duty
Section 42 of the Care Act 2014 requires a local authority to undertake an enquiry in order to establish whether any action needs to be taken to prevent or stop abuse or neglect, where the council has reasonable cause to suspect that an adult in its area who has needs for care and support (whether these are being met or not), is experiencing or is at risk of this, and is unable to protect themselves from the abuse or neglect due to their needs.
Paragraph 14.17 of the Care and Support Statutory Guidance specifies that abuse or neglect includes modern slavery, which encompasses: slavery; human trafficking; forced labour; domestic servitude; and where traffickers and slave masters use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment.
A person’s nationality or immigration status should not prevent a local authority from following its safeguarding procedures when this duty is engaged. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not prevent the local authority from undertaking an enquiry and taking any necessary action to stop abuse or neglect.
When a person is identified as being a potential victim of trafficking or modern slavery, the local authority must notify the National Referral Mechanism (NRM). Where the person has NRPF, the safeguarding plan will need to explore what housing options are available. This could include:
- housing available through the NRM;
- consideration within the needs assessment to establish whether accommodation can be provided under the Care Act 2014; and/or
- consideration as to whether section 1 of the Localism Act 2011 will require the local authority to provide housing in order to prevent a breach of human rights or to comply with the EU Anti-Trafficking Directive.
Even if no further action is taken following the safeguarding enquiry, the person should be provided with information about housing options if they have NRPF. Information about statutory support options is set out here.
12.2 National Referral Mechanism support
Local authorities are under a duty under section 52 of the Modern Slavery Act 2015 to notify the Home Office about a potential victim of trafficking or modern slavery. This is done by making a referral to the National Referral Mechanism (NRM) if the person’s consent is obtained. If the person does not consent to a referral, then the local authority will be required to complete the MS1 notification form.
When a referral is made to the NRM, housing and subsistence support is provided by the Salvation Army and partner organisations during the recovery and reflection period for 45 days, during which time the person can consider their options. They should receive a conclusive grounds decision about whether they are a victim of trafficking or not as soon as possible after 45 days. When they receive a positive grounds decision they are entitled to further 14 days’ support, but extensions are considered on a discretionary basis by the Home Office. During this period, victims are expected to decide whether to return to their country of origin or apply for discretionary leave to remain, which if successful will allow the person to have recourse to public funds. If the person receives a negative conclusive grounds decision, then their support will only continue for two days.
In November 2017, the government announced that the period of support provided following a positive conclusive grounds decision would be extended to 45 days, so 90 days’ support will be available in total.
There are often gaps between the Salvation Army support stopping and the person being able to access benefits following a grant of discretionary leave to remain, leaving victims homeless and destitute.
In the case of R (Galdikas & Ors) v Secretary of State for the Home Department & Ors (2016), a group of EEA nationals who received positive conclusive grounds decisions brought a legal challenge against the Home Office claiming that the support provision following a conclusive grounds decision was not adequate In this case the judge found that, in order to comply with Article 11 of the EU Anti-Trafficking Directive, which requires the UK to provide support and assistance including ‘appropriate and safe accommodation’, consideration of an application for discretionary leave to remain includes a duty to provide support pending the determination of this application.
This case makes it clear that support should continue following a positive grounds decision whilst the person’s discretionary leave application is pending, but does not explicitly state where responsibility lies for providing this. With extensions of NRM support currently being time limited and dependent on the discretion of the Home Office, there will be instances when it falls to the local authority to provide support.
12.3 Local authority support
A victim of trafficking or modern slavery may be eligible for accommodation under the Care Act 2014. Where this does not apply, the local authority would need to consider using section 1 of the Localism Act 2011 to provide support.
12.3.1 Care Act 2014
A potential or confirmed victim of trafficking may request a needs assessment with a view to establishing whether they require care and support, including accommodation. Many people who have been subject to trafficking or modern slavery are reported as experiencing high levels of depression, anxiety and PTSD.
Therefore it is highly likely that such a person will present with an appearance of need, and so would need to be assessed as usual under the Care Act 2014.
Where a potential victim of trafficking has eligible care and support needs, the local authority will need to consider whether to provide accommodation in order to meet their needs. When a person is receiving housing through the NRM, then the local authority would need to take into account the person’s wishes and suitability of the accommodation to determine whether their care and support needs can be met whilst they are living there. For example, the local authority would need to establish whether carers would be permitted to enter a safe house or whether any necessary adaptations can be made in the accommodation. There may therefore be instances when, even though NRM support is available, it falls to the local authority to provide accommodation.
When a person is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, the local authority will also undertake a human rights assessment because care and support can only be provided where this is necessary to prevent a breach of a person’s human rights or EU treaty rights. When a person is waiting for their determination through the NRM or a decision on an application for leave to remain following a positive conclusive grounds decision, then it is likely that the outcome of a human rights assessment would be that any eligible care and support needs will need to be met, at least until these decisions are made. However, when there are no longer any legal or practical barriers preventing the person from leaving the UK, the local authority may not have a duty to provide support if the person can return to their country of origin.
12.3.2 Localism Act 2011
In many cases, victims of trafficking or modern slavery will not qualify for care and support under the Care Act, so cannot be housed under the Care Act. When a person is not receiving support through the NRM and does not have any alternative means of accessing housing then the local authority must consider whether to use its power under section 1 of the Localism Act 2011 to provide accommodation.
Local authorities will need to decide which department will be responsible for funding and arranging such accommodation. Any multi-agency protocols developed in relation to police operations (planned and unplanned) will need to consider responsibility for providing housing when potential victims have NRPF, and develop a pathway for obtaining this. Access to immigration and other specialist advice will be essential to help establish whether the person has entitlement to benefits, for example, whether an EEA national has a right to reside or what options a non-EEA national without any immigration permission may have.
As public awareness of modern slavery increases, it is likely that more potential victims will be identified and the question of responsibility for funding support when people have NRPF will be of increasing importance. Although NRM support is due to be extended for people who have a positive conclusive grounds decision to ensure continuation of provision before leave to remain is granted, local authorities are reporting that there can be delays before NRM support is provided. Local authorities are advised to record and document all cases where support is provided, using NRPF Connect or other means, in order to help identify where there are gaps in support and evidence the resulting costs.
For more information, see sections: