This chapter sets out how a local authority will determine whether it has a duty to provide accommodation and financial support to a family with NRPF.
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.
In R (C, T, M and U) v LB Southwark (2016), the Court of Appeal 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. This means that local authorities will need to undertake a child in need assessment to determine eligibility for support.
In the case of R(AC & SH), v LB Lambeth Council (2017), the court considered the local authority’s child in need assessment of a child in an NRPF household who had autism. The judge provided a useful explanation of the purpose of the child in need assessment and process that must be followed:
‘The duty of a local authority to assess the needs of a child who is apparently in need is not disputed. Other uncontroversial aspects of the case are that the Framework for the Assessment of Children in Need and their Families Guidance 2000 issued under s.7 Local Authority Social Services Act 1970 and the Working Together to Safeguard Children 2015 is relevant guidance for those charged with making an assessment of a child’s needs. This guidance may only be departed from where there is good reason to do so, and its core feature is that the assessment of a child’s needs should not be an end in itself. Rather, it is a process which will lead to an improvement in the well-being of the child, and the conclusion of the assessment should result in a realistic plan of action, identifying the services to be provided, allocating responsibility for such action as needs to be taken, laying down a timetable for that action, and specifying the mechanism by which that action can be reviewed. In the case of a disabled child the assessment is divided into an initial assessment and a core assessment, following which a care plan shall be drawn up indicating how the local authority intends to meet the assessed needs of the child in question.’
3.2.1 Ongoing duty to reassess need
The courts have been clear that section 17 is an ongoing duty, so when a family’s circumstances change the local authority must decide whether this means that the child’s needs must be reassessed.
In the case of R (U & U) v Milton Keynes Council (2017) the court considered a legal challenge brought by a family, consisting of a Nigerian mother and her two children, against the local authority’s refusal to provide support and to undertake a reassessment of the children’s needs when the family’s accommodation situation changed. The local authority had relied on a previous child in need assessment to refuse to provide support on the basis that that the mother had alternative sources of support available to her. The previous child in need assessment could be relied upon in this case, because further evidence provided by the mother was properly considered and was deemed not to have made a material difference to the original conclusion, even though there was accepted evidence that the family’s current accommodation arrangement could not be sustained.
The judge sets out when a new assessment may be required and when a previous assessment could be relied upon:
‘The duty under section 17 is an ongoing one: Holmes-Moorhouse v. London borough of Richmond Upon Thames  UKHL 7. If an authority has assessed a child not to be in need but there is then a relevant change in circumstances or further material information comes to light which suggests that a child may be in need, the authority may have to reassess or, at least, make inquiries in order to decide whether a reassessment is required.’
‘The Defendant was entitled to rely on the conclusions reached in the assessment unless subsequently provided information cast doubt on those conclusions such that it could materially affect the outcome, or new information suggested that there was or might have been a change in the family’s circumstances such that the children appeared to be in need.’
Although the council was entitled to rely on a previous assessment, it’s decision to refuse support was found to be unlawful for another reason, which is addressed in section 3.3.3.
Two earlier cases provide examples of instances when local authorities were found to have acted unlawfully by not undertaking reassessments of the children’s needs following new information. In both cases the mothers had leave to remain with NRPF.
The case of R(AC & SH) v LB Lambeth Council (2017) involved a mother and two children of ages 4 and 10. In September 2016, following a detailed assessment of the family’s financial and housing circumstances, the local authority found the children not to be in need and provided them with a 12 week notice period to leave their accommodation. In December, the family’s solicitors informed the local authority that the elder child had received a formal diagnosis of autism in October. The local authority decided that, although the elder child was a child in need due to his autism, this information made no significant changes to the family’s circumstances or outcome of the child in need assessment and did not undertake a new written assessment. The court found that the assessment had not been procedurally unfair because the entirety of the evidence failed to explain or reconcile the family’s accommodation and support history but it lacked a proper evaluation of the child’s needs at a time when the child was subject to additional education support and had a pending autism assessment, so was not compliant with statutory guidance. Following the formal autism diagnosis, no decision was made about what support was necessary and appropriate to meet the child’s needs, including whether a failure to provide services (including accommodation) would mean the child would be unlikely to achieve or maintain a reasonable standard of health and development. The local authority was ordered to redo the child in need assessment and accommodate the family in the interim period.
In the extempore judgment of R (CO & Anor) v LB Lewisham Council (16 June 2017), involving a mother and two children aged 8 and 11 years old, the local authority found the children not to be in need because the mother had support from her sisters, family, friends and the children’s father, in addition to her own resources. The assessment raised concerns about the mother’s credibility as the local authority suspected that she had not been truthful about her financial and housing situation. Her sisters, and the children’s father, later provided statements to confirm they had withdrawn their support, and since March 2017, the family stayed in hotels. The local authority’s reassessment found that the children were still not in need, placing reliance on the first assessment and doubts about the mother’s truthfulness. The court found that, as soon as the family left stable accommodation, a reassessment should have been carried out but the local authority failed to properly consider the new evidence and so did not obtain a full and accurate picture of the family’s situation, which was that the mother’s income was insufficient to support her children and fund accommodation.
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. As their immigration status prevents them from claiming benefits and accessing affordable social housing, parents may also face challenges sustaining work where they have permission to do so.
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 research 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 such 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 benefits usually provided to families with a low income.
In the case of R(AC & SH) v LB Lambeth Council (2017) the judge succinctly describes this duty:
‘The local authority is empowered to rescue a child in need from destitution where no other state provision is available.'
3.3.1 Assessment approach
In R (C, T, M and U) v LB Southwark (2016), the Court of Appeal was 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.
3.3.2 Addressing information gaps
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. A significant body of case law has developed that has addressed how local authorities should approach assessments where information from the parent is lacking.
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, in finding that the three children in a Nigerian family were not in need on four separate occasions, the local authority 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.
An example where a local authority’s decision to refuse support was found to be rational is the case of 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 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.
The case of R (BC) v Birmingham City Council (2016), illustrates that local authorities need to ensure that full investigations into a family’s circumstances are undertaken in all circumstances. The local authority initially refused to undertake a child in need assessment when a Jamaican overstayer and her six 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, and concluded 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 view led to the local authority failing 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.
3.3.3 Limitations on the ability to self-support
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 been prohibited from allowing a person with no current immigration permission to open a new current account.
- A person with no immigration permission may have their bank accounts closed or frozen, as since 1 January 2018, banks and building societies have been required to check details of current account holders against a database of Home Office information on a quarterly basis.
- Since 1 February 2016, private landlords in England have not been able to legally rent or sub-let a property to a person who does not have any current immigration permission and who has not been granted permission to rent on an exceptional basis by the Home Office. This also applies to renting a room to paying lodgers.
- Since 1 December 2016, landlords have been 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; when the Home Office informs a landlord that this applies to their tenant, the landlord 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 these measures in order to ensure that they do not inadvertently encourage or condone criminal activity when determining what alternative support options are available to a family.
These sanctions mean that the local authority may have to bear the cost of funding support, for example, where a parent would otherwise be committing a criminal offence by working illegally, or is unable to rent in the private sector despite having the means to do so. The courts have been clear that, when a local authority finds that a child is not in need because the parent can secure accommodation or has other housing arrangements available to them, the local authority must consider whether the family can realistically access this alternative support and whether the suggested accommodation arrangement is suitable for the child. Failure to consider both factors has led to the needs assessments of two local authorities being found to be unlawful.
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 assessment was found to be unlawful as the local authority had: not identified and specified which friends or family members would be able to provide accommodation; failed to consider the cost of staying in a B&B compared with the mother’s resources; and not identified that there was no reasonable prospect of her renting in the private sector due to the right to rent scheme preventing her from doing so due to her immigration status.
In the case of R(U & U) v Milton Keynes Council (2017), the local authority refused to provide support to a Nigerian overstayer and her two children, who were found not to be in need because the mother had funds available to secure hotel accommodation. Although the decision regarding the mother’s access to funds was accepted as reasonable by the court, the local authority’s failure to consider that the right to rent scheme would prevent such an arrangement meant the decision was unlawful. Stays in a hotel or bed and breakfast could amount to a residential tenancy agreement where this is the family’s only or main residence, as opposed to being holiday accommodation. The judge suggested that, even if short stays in different hotels meant that the family were not treated as resident and so were not subject to the right to rent scheme, there would be the question of whether such an arrangement is suitable for the children order to avoid them becoming children in need. As the local authority failed to address this, it could not lawfully find that the children were not in need.
In the extempore judgment of R (CO & Anor) v LB Lewisham Council (16 June 2017), where the family had stayed in hotels since March 2017 following the withdrawal of support from family members, the judge found that during this period:
‘..the family’s accommodation had been hopelessly unstable and totally inappropriate. It was in the children’s interests to be housed with their mother but the mother’s income was not sufficient to support her children and fund accommodation. The local authority had acted irrationally in finding the children not to be in need and it had failed in its statutory duty to safeguard the children since March 2017.’
The right to rent question did not arise because the mother had leave to remain with NRPF.
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.
3.4 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 EU 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 more information, see sections: