3.1 Statutory framework
The local authority’s responsibility to provide accommodation and financial assistance to families with NRPF arises from general duties to safeguard the welfare of children in need, which are set out in the Children Act 1989. Such assistance can only be provided to a family where there is a child in need and the local authority determines that it must use its power under this act to provide accommodation and/or financial support to meet the child’s assessed needs.
Section 17(1) Children Act 1989 sets out the general duty of local authorities:
- to safeguard and promote the welfare of children within their area who are in need; and
- so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs
Section 17 goes on to define ‘in need’:
“(10) For the purposes of this Part a child shall be taken to be in need if—
- he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;”
- his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
- he is disabled,
and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.”
In the Department for Education’s statutory guidance, Working together to safeguard children, the phrase “safeguard and promote the welfare of children” is defined as:
“protecting children from maltreatment; preventing impairment of children’s health or development; ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and taking action to enable all children to have the best life chances.”
The Court of Appeal, in the case of R (C, T, M and U) v LB Southwark (2016), clarified that section 17 creates a target duty which provides a local authority with the discretion to decide how to meet a child’s assessed need. Local authorities may take scare resources and other support options available to the family into account and must decide what intervention is required on the facts and evidence of an individual case.
3.2 Child in need assessment
The Court of Appeal in R (C, T, M and U) v LB Southwark (2016) has been very clear that to determine whether support can be provided under section 17 to an NRPF family, an assessment must be undertaken in line with the framework set out in the statutory guidance, Working together to safeguard children. The Court of Appeal suggests that to follow a separate policy for a particular group of children would be difficult given that each child’s needs are to be individually assessed by reference to the statutory assessment framework.
The statutory guidance requires local authorities to undertake an assessment of an individual child’s needs with consideration of the child’s wishes, in order to determine which services to provide and what action to take. The purpose of the assessment being to:
- gather important information about a child and family;
- analyse their needs and/or the nature and level of any risk and harm being suffered by the child;
- decide whether the child is a child in need (section 17) and/or is suffering, or likely to suffer, significant harm (section 47); and
- provide support to address those needs to improve the child’s outcomes to make them safe.
The statutory guidance also sets out what is required of an assessment, i.e. it must cover the three areas of the Assessment Framework:
- The child’s developmental needs, including whether they are suffering, or likely to suffer, significant harm.
- The parents’ or carers’ capacity to respond to those needs.
- The impact and influence of wider family, community and environmental circumstances.
Social services are required to decide what response is required within one day of the referral being received and to conclude the assessment no longer than 45 working days from the point of referral.
There is no specific reference in the statutory guidance to assessing children in NRPF families but there will be considerations specific to a child in an NRPF household that must be made to establish whether the child is in need. The local authority’s response must therefore consider the impact on the child of the parent’s lack of access to employment, welfare benefits and social housing due to their immigration status. The COMPAS research found that the welfare need of NRPF families at point of referral was overwhelmingly for accommodation. It follows that housing and financial support can be provided to a child and their family in order to safeguard and promote the welfare of the child when they are in need due to a lack of these.
Where such a situation is identified, and the child does not appear to have needs other than those related to a lack of housing or provision for their basic living requirements, it may be possible to lawfully conclude that support will not be provided without undertaking a full child in need assessment, but only when the local authority has made detailed enquiries that properly consider the needs of the child. This practice has been accepted by the courts in the interim relief case of Giwa v LB Lewisham (2015), when it appeared that a family, who were Nigerian overstayers, had other support options available including returning to Nigeria. It is notable that the enquiries that were carried out by the local authority appeared to be no less rigorous than they would have been had a child in need assessment been conducted.
Giwa v LB Lewisham (2015) confirms that when determining whether the local authority has acted lawfully and rationally, what matters is how the local authority has collected and documented the information and evidence needed to support its decision making process. In R (C, T, M and U) v LB Southwark (2016), the Court of Appeal has since confirmed that support under section 17 can only be provided in order to meet the needs of a child following an assessment in line with the statutory guidance, so local authorities may find it more efficient to undertake a child in need assessment when deciding all applications for support.
In the interim relief application of R(Kareem) v Lewisham LBC (2017), the court confirmed that there is an ongoing duty for a local authority to consider whether it was appropriate to treat children as children in need. A fresh decision would therefore need to be made on the basis of any further information put before the local authority.
3.3 Considerations specific to children in NRPF families
Families with NRPF may present to social services because they are homeless or threatened with homelessness and/or the parents have insufficient income to provide for their family’s’ living needs because they are unable to work, claim benefits or access social housing due to their immigration status.
The courts confirmed that a child without accommodation will be a child in need in the housing case, R v Northavon District Council, Ex p Smith (1994).
It is highly likely that a lack of accommodation or a parent’s inability to provide for their child’s living needs will have an adverse impact on the child’s health and/or development. Therefore, a child requiring accommodation and/or food, warmth and other essential needs, will have welfare needs which the local authority may be required to provide for in order to exercise its duty under section 17.
Although the COMPAS report highlighted that safeguarding risks were strongly linked to material deprivation, families were frequently found to be vulnerable to exploitation. Such risks to the child must also be considered.
As part of the assessment, the local authority would need to establish what other support options are available to the family in the UK, or whether return to country of origin may resolve the family’s inability to self-support in the UK when the parent is in an excluded group. There will be many cases where other support options will be limited:
- Where the parent has no current immigration permission, is in an excluded group and has a pending human rights application or appeal that has not been determined by the Home Office or courts which constitutes a legal barrier preventing the family from leaving the UK.
- Where the parent is the primary carer of a British (or other EEA national) child and has a right to reside under European law, is not in an excluded group, has permission to work but cannot claim benefits and social housing.
- Where the parent has leave to remain with the NRPF condition, is not in an excluded group, has permission to work but is excluded from benefits and social housing.
In such cases the courts have been clear that the purpose of section 17 is to provide a safety net of support for families who either cannot leave the UK or who are lawfully present in the UK but are prevented by their immigration status from being able to claim top-up benefits usually provided to families with a low income.
For further information see sections:
3.4 Considerations when undertaking an assessment
In R (C, T, M and U) v LB Southwark (2016), the Court of Appeal is clear that the local authority must gather information which is adequate for the purpose of performing its statutory duty under section 17 of the Children Act 1989, and must also have due regard to the child’s best interests in the context of having regard to the need to safeguard and promote the welfare of children. Any information and evidence already gathered by the local authority as part of its initial enquiries must be considered within the child in need assessment, in balance with other factors relating to the welfare of the child:
- How the family’s financial and housing circumstances are affecting the child’s health and development, what assistance the child needs and how the child would be affected if they do not receive such help.
- How urgently the family needs assistance.
- Details of any medical conditions affecting the child or their family members.
- Details of the child’s current and previous schools.
- If the child’s other parent is not in the family household, their details including nationality and immigration status, what contact the parent and child has with them and whether they are providing any support.
Depending on the family’s particular circumstances, information and documents relating to the family’s finances and housing will need to be requested. Any enquiries made must relate to the circumstances of the family and child. Local authorities cannot therefore work to a definitive list of documents and expect everything to be provided.
When considering the parent’s ability to self-support it is important to be aware of the restrictions imposed by the Immigration Act 2014 and Immigration Act 2016 that apply to people who do not have any current immigration permission:
- Since 12 December 2014, banks and building societies have not been permitted to allow a person who does not have any immigration status to open a new current account. (There is a provision in the Immigration Act 2016, not currently in force, which will require banks to undertake periodic checks and close or freeze an account when the holder is identified as having no current immigration permission.)
- Since 1 February 2016 private landlords in England cannot legally rent a property, sub-let a property or have a paying lodger who does not have any current immigration status and when the Home Office does not grant that person permission to rent. When establishing whether a family can afford to fund their own accommodation, the local authority must have regard to whether the right to rent scheme would prevent the family from obtaining housing in the private sector – R(N) v Greenwich LB Council (2016).
- On 1 December 2016, landlords will be required to take action to end a tenancy or evict a tenant when they find out or have reasonable cause to believe that the occupier does not have any immigration permission; the Home Office will be actively informing landlords about such people, and in such cases the landlords may undertake possession proceedings without having to obtain a court order.
- On 12 July 2016, undertaking work or self-employment became a criminal offence, punishable by imprisonment, for people who do not have any current immigration permission, or have a condition attached to their leave to remain restricting employment.
Local authorities must be fully aware of the above measures and take these into account in order to ensure that they do not inadvertently encourage or condone criminal activity when determining what alternative support options may be available to a family.
In several cases examining local authority decision making with regards to whether a child in an NRPF family is in need under section 17, the courts consistently highlight that the child in need assessment is an evaluative exercise which must consider all the information in the round. Local authorities need to undertake thorough investigations and properly document findings, ensuring that any judgments on the parent’s credibility are based on fact and not feel, and adverse inferences must not be made without first putting such concerns to the parent and providing them with an opportunity respond.
In the cases of MN and KN v LB Hackney (2013), and N v LB Newham and Essex County Council (2013), the Courts considered the lawfulness of local authority decisions to refuse assistance when parents were not forthcoming with the information that was necessary to establish whether the child was in need; in each case this was information about how the parents had supported themselves in the UK. The local authorities in each case were found to have acted lawfully because they had made their decisions based on detailed and documented investigations, providing the parents with adequate opportunity to supply the requested information.
The case of O v LB Lambeth (2016) concerned a family where the mother was a Nigerian overstayer. At the first child in need assessment, the mother had presented bank statements showing an income of £9000 over one year. The friend they were staying with claimed child benefit and child tax credit for O, which appeared to be retained in lieu of rent or for the purpose of funding O’s needs. At the second assessment, the mother presented bank statements for the period following the first assessment which showed she had no income. The social worker concluded that funds remained available to the family and were not being paid into account to bolster the application for support. The Judge found that the social worker could rationally conclude that the family had sources of income available to them on the basis that a reasonable level of support had been available until March 2015; those payments ceased without reasonable explanation following the first negative assessment; and the mother had failed to cooperate with further reasonable enquiries regarding the child’s father and source of the money. In the determination, the Judge sets out how a local authority should approach cases where there is evidence that the family have resided in the UK for a number of years without access to public funds:
“19. If the evidence is that a family has been in this country, without recourse to public funds and without destitution for a number of years, reliant on either work or the goodwill and kindness of friends and family, then the local authority is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up. In order to make those enquiries, the local authority needs information. If the applicant for assistance does not provide adequate contact details for family and friends who have provided assistance in the past, or cannot provide a satisfactory explanation as to why the sources of support which existed in the past have ceased to exist, the local authority may reasonably conclude that it is not satisfied that the family is homeless or destitute, so that no power to provide arises.
20. Fairness of course demands that any concerns as to this are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of ‘non-destitution’ from the combination of (a) evidence that sources of support have existed in the past and (b) lack of satisfactory or convincing explanation as to why they will cease to exist in future.
21. In other words, if sufficient enquiries have been made by the local authority and if as a result of those enquiries an applicant fails to provide information to explain a situation which prima facie appears to require some explanation, then the failure by an applicant to give sufficient information may be a proper consideration for the local authority in drawing the conclusion that the applicant is not destitute: see per Mr Justice Leggatt in R(MN) v London Borough of Hackney  EWHC 1205 (Admin) at . But that does not absolve the local authority of its duty of proper enquiry.
22. I also note what was said by Leggatt J in the Hackney case at  as to the approach which the court should take to evidence in determining whether there has been such enquiry. He said that little or no weight should be given to witness statements prepared months after a decision had been taken for the purpose of litigation, with the obvious dangers of ex post facto rationalization; and more fundamentally:
“What a public authority decided should in principle be ascertained objectively by considering how the document communicating the decision would reasonably be understood, and not by enquiring into what the author of the document meant to say or what was privately in his mind at the time when he wrote the document.”
The need for making sufficient enquiries about any gaps in evidence is stressed in R (S & J) v LB Haringey (2016), in which the court considered the lawfulness of a child in need assessment undertaken for two children. Their Ghanaian mother had leave to remain with NRPF, was working and receiving child maintenance. Although the conclusions drawn in the assessment were not found to be irrational, and the local authority was found to have had regard to the need to safeguard and promote the welfare of the children, the assessment was procedurally deficient. Concerns about the lack of information given by the mother about her wages and how she had paid rent in the past were not put to the mother before adverse inferences were drawn, causing unfairness to the family. The assessment was therefore unlawful and the local authority’s decision not to treat the children as being in need was quashed.
The courts have acknowledged that there is a high threshold to be reached for an assessment to be found to be irrational. In the case of R(OK) v Barking and Dagenham LBC (2017), this threshold was reached because the local authority, in finding that the three children in a Nigerian family were not in need on four separate occasions, had failed to evaluate all the evidence and identify why that was to be disbelieved. It had failed to review the first negative assessment with a fair and open mind, ignoring material which pointed in an opposite direction. The case involved a Nigerian family of two parents and three children, with a pending application for leave to remain, who had not been inconsistent and had provided detailed explanations, supported with evidence, about why they could no longer rely on the support of family and friends. Failure to consider this, along with other information the family was willing to provide, led to the court to conclude that the assessments were not sufficiently diligent, were procedurally unfair and the conclusions made were irrational.
Local authorities need to ensure that full investigations into a family’s circumstances are undertaken in all circumstances. In the case of R (BC) v Birmingham City Council (2016), the local authority initially refused to undertake a child in need assessment when a Jamaican overstayer and her 6 year old son (who was born in the UK) presented, because they had previously been living in another local authority’s area and had only recently moved to Birmingham. When Birmingham City Council did undertake an assessment the child was found not to be in need, concluding that the family could apply to the other local authority for support or rely on the help of the mother’s cousin in Birmingham.
The judge noted that the provision of accommodation and support by friends or family in another area was a proper consideration in the context of determining whether the child was in need, and in this case there were several reasons which indicated that the child was not in need: there was some evidence the mother’s cousin would provide the family with accommodation in spite of the risk to her tenancy; the local authority might have concluded that the mother had failed properly to explain her previous sources of support and to demonstrate that they had dried up; and the possession of expensive clothing and a mobile phone might indicate undeclared sources of support.
However, the local authority failed to fully investigate these issues and document its findings. For example, no enquiries as to whether the cousin had space for the child were made. Additionally, the mother could not be found to have failed to cooperate by not producing documents when the requested bank statements and Home Office application did not exist. The judge noted that any conclusion that the mother had an undeclared support network could only fairly be drawn after proper investigation and fairly putting these points to the mother so that she could address them, in line with R(O) v LB Lambeth. The judge found that the principal factor in the local authority’s decision was its view that the mother should have been seeking assistance from another local authority, which was found to be an error of law. This infected the Council’s reasoning and caused it to fail to make sufficiently diligent enquiries into the availability and suitability of accommodation. The judge granted permission for the judicial review application and also quashed the local authority’s decision not to treat the child as a child in need.
The child in need assessment must properly consider any reasons for asserting that a child is not in need because alternative support is available to the family. In R(N) v Greenwich LB Council (2016), the local authority was ordered to provide accommodation to a mother and child as interim relief, pending the hearing of their judicial review application against the council’s decision that the child was not a child in need. The mother was a Gambian overstayer who was challenging a Home Office decision to refuse her a residence card, and her son was a French national. The local authority refused to provide accommodation on the basis that the family could stay with friends or family, or in a bed and breakfast. The local authority had not identified and specified which friends or family members would be able to provide accommodation; the assessment has failed to consider the cost of staying in a B&B compared with the mother’s resources and there was no reasonable prospect of her renting in the private sector due to the right to rent scheme.
Note that in R (S & J) v LB Haringey (2016), when finding that the family in question could rely on support from other people, the fact that the local authority had not identified particular family members or friends was not in itself found to be an irrational conclusion on the basis of the evidence considered by the social worker. This serves to illustrate the point that a decision on whether a child is in need or not must be based on an evaluative exercise, drawing conclusions based on all of the information that has been obtained.
This is again emphasised by the court in R(AE & AO) v Lewisham LB Council (2016), where the court refused an application for judicial review of the local authority’s child in need assessment of two children, aged seven and nine. Their Nigerian parents had lived in the UK for 12 years and were both overstayers. The father had lost his job and the family were evicted from their home. The Court found that the local authority had undertaken a detailed assessment making numerous enquiries into the family’s resources, drawing conclusions about the parent’s credibility on a number of factors rather than by ‘feel’. These findings entitled the local authority to be sceptical about the parent’s claims and draw inferences from the fact that they only provided scant information about how they had supported the family in the past. Such findings were not outweighed by the factors in favour of the family that suggested destitution (the father’s loss of employment and the eviction). The court stated that the assessment should be taken in the round, being an evaluative exercise, taking into account all facts and circumstances, with appropriate respect given to the expert judgment of social workers who should not be expected to provide an approach or analysis of a lawyer or court judgment.
3.5 Considerations when parents are in an excluded group
When a parent is in one of the groups of people that are excluded from receiving accommodation and financial support under section 17, a human rights assessment will also need to be undertaken in conjunction with the child in need assessment in order to determine whether support must be provided to prevent a breach of the family’s human rights or rights under the European Treaties.
If return to country of origin is being considered, the child in need assessment should also address the child’s needs within the country of origin and how they may or may not be met, as this information would be relevant to the human rights assessment.
For further information see sections: