This guidance is intended to provide a reference for local authorities to use in order to apply statutory duties and powers in relation to safeguarding the welfare of children in households where the parents have no recourse to public funds (NRPF) and require accommodation and/or financial assistance.
Such assistance can only be provided to families under section 17 of the Children Act 1989, where there is a child in need and the local authority determines that it must use its power to provide accommodation and/or financial support.
When assessing the needs of a child, practitioners must refer to and follow the Department for Education’s statutory guidance, Working together to safeguard children.
This practice guidance addresses the additional considerations that need to be made when determining whether assistance under section 17 can be provided to a NRPF family, as the parent’s immigration status will affect what support options may be available:
- Parents with NRPF cannot access welfare benefits, homelessness assistance, social housing and, in some cases, employment.
- Exclusions to section 17 support apply to some parents, which mean that the local authority may only provide accommodation and financial support to such families when this is necessary to prevent a breach of the family’s human rights or European Treaty rights, usually when there is a legal or practical reason why the family cannot return to the parent’s country of origin.
Assistance provided by local authorities under section 17 has been recognised by the government and courts as being essential safety net support to protect the most vulnerable people from destitution. It is therefore necessary for thorough assessments to be undertaken so that support is provided to eligible families under section 17, and that proactive steps are taken to resolve supported cases.
As well as producing this guidance, we have developed a web tool in partnership with COMPAS (University of Oxford) and Soapbox, which will help practitioners find out what considerations need to be made when a family requests support under section 17 by answering questions about the parent’s immigration status. We recommend that the tool is used in conjunction with this guidance, and the information provided will link out to relevant sections of this guidance. Link to tool:
Social care is a devolved power and the Children Act 1989 applies to England only. Wales, Northern Ireland and Scotland have different legislation, although the responsibilities towards children are similar to those which apply in England. As immigration legislation applies to all administrations, this guidance provides all local authorities with a reference as to how to assist families with NRPF. For information specific to Wales, please see the Welsh Refugee Council’s briefing:
- Destitution, safeguarding and services under the Children Act 1989 (up to April 2016) and Social Services and Well-being (Wales) Act 2014 (from April 2016)
1.1 Legislative changes due in 2017
The Immigration Act 2016 contains important changes that will apply in England to local authority support (accommodation and financial assistance) provided to destitute families where parents:
- have no current immigration permission, or
- have a derivative right to reside under European law as the primary carer of a British (or other EEA national) child (Zambrano carer).
When these provisions of the Act are implemented, such families will not be able to receive support under section 17 of the Children Act 1989 but the local authority will be required to provide support to eligible families under new legislation: paragraph 10A of Schedule 3 of the Nationality, Immigration and Asylum Act 2002.
Additionally, Home Office support for asylum seeking families will be terminated when the parent’s claim is finally determined and refused; Home Office support forrefused asylum seekers will only be available in very limited circumstances. Refused asylum seeking families who remain in the UK after their asylum support has stopped may therefore request assistance from local authorities, and will need to be assessed for support under the new legislation.
When the Act is implemented there will be a significant proportion of families who will continue to be eligible for support under section 17, including those where the parents have leave to remain with no recourse to public funds (NRPF); are EEA nationals (subject to a human rights assessment); and all families receiving section 17 support prior to the implementation date.
The local authority and asylum support changes are expected to come into force in 2017. The asylum support measures will take effect across the UK but it is unclear at present whether the changes to local authority support will apply in the devolved administrations. This guidance will be updated to incorporate the changes when the full detail is known.
For more information see our factsheet:
1.2 Who has NRPF?
No recourse to public funds (NRPF) applies to people who are ‘subject to immigration control’ and as a result of this have no entitlement to certain welfare benefits, social housing and homelessness assistance.
The definition of ‘subject to immigration control’ is set out in section 115 (9) of the Immigration and Asylum Act 1999 and applies to people with the immigration status types specified in the table below.
|A person that…||Examples|
|Requires leave to enter or remain in the UK but does not have it||Visa overstayer
|Has leave to enter or remain in the UK which is subject to a condition that they have no recourse to public funds (NRPF)||Spouse of a settled person
Tier 4 student and their dependents
Leave to remain under family or private life rules
|Has leave to enter or remain in the UK that is subject to a maintenance undertaking||Adult dependant relative of a British Citizen or person with settled status|
People with the following types of immigration status will have recourse to public funds:
- Indefinite leave to remain or no time limit
- Right of abode
- Exempt from immigration control
- Refugee status
- Humanitarian protection
- Discretionary leave to remain, including:
- leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery
- Destitute domestic violence concession
- Limited leave to remain granted under family and private life rules (where the person is accepted by the Home Office as being destitute)*
- UASC leave
*Some people who have certain types of leave to remain with NRPF may be able to gain recourse to public funds by applying to the Home Office for the condition to be removed.
When a person has leave to remain with NRPF, ‘no public funds’ will be written on their immigration document.
If there is no such statement then it should be assumed that they do have access to public funds, although they would need to satisfy the relevant benefit or housing eligibility requirements.
Section 115 of the Immigration and Asylum Act 1999 does not apply to European Economic Area (EEA) nationals but they not be able to access certain welfare benefits and housing assistance if they fail the right to reside and/or habitual residence tests, which are applied when determining eligibility for these services, so may also be referred to as having NRPF. People who have a derivative right to reside under European law may be able to claim public funds depending on what basis they have acquired this right.
For further information see sections:
- 1.3 What are ‘public funds’?
- 2.2 Checking immigration status
- 5 EEA nationals and family members
- 9.3 Leave to remain with NRPF
1.3 What are ‘public funds’?
Section 115 of the Immigration and Asylum Act 1999 and paragraph 6 of the Immigration Rules specifies which welfare benefits a person who is subject to immigration control will be excluded from:
- Attendance allowance
- Carer’s allowance
- Child benefit
- Child tax credit
- Council tax benefit
- Council tax reduction
- Disability living allowance
- Discretionary support/ welfare payment made by a local authority
- Domestic rate relief (Northern Ireland)
- Housing benefit
- Income-based jobseeker’s allowance
- Income-related employment & support allowance
- Income support
- Personal independence payment
- Severe disablement allowance
- Social fund payment: budgeting loan, sure start maternity grant, funeral payment,cold weather payment and winter fuel payment
- State pension credit
- Universal credit
- Working tax credit
Section 118 of the Immigration and Asylum Act 1999 excludes a person subject to immigration control from being entitled to access an allocation of social housing and local authority homelessness assistance.
There are several exceptions to the rules regarding public funds, which are set out in the Home Office Modernised Guidance on Public Funds. This means that a person who has leave to remain with NRPF may be able to claim certain benefits without this affecting their immigration status:
- When they are a national of a country that has a reciprocal arrangement with the UK.
- When they have a British Citizen child they can claim Child Benefit.
- When they make a joint claim for Tax Credits with a partner who has recourse to public funds.
There are many publically funded services which are not classed as public funds under section 115 of the Immigration and Asylum Act 1999, and therefore a person with NRPF may be able to access these when the relevant eligibility criteria are satisfied, which may include requirements relating to nationality or immigration status.
Assistance provided under social services legislation is not a public fund for immigration purposes but there are restrictions for some people based on nationality and immigration status who require certain types of support from social services.
For further information see sections:
1.4 Good practice points
Local authorities need to adopt a consistent, lawful and efficient response when assisting families with NRPF. The following good practice points have been established through our work over the last decade with partner authorities and agencies:
A specialist and targeted response is required to administer services effectively; ensure there is an identified lead person or team to deal with NRPF cases.
Establishing internal protocols and having regard for the legislation and case law referenced in this guidance will help ensure that NRPF cases are identified at point of referral and dealt with consistently.
Provide an interpreter if this is required.
Monitor caseloads and expenditure on families with NRPF using NRPF Connect, which will also inform the Home Office of local authority involvement in case and contribute to the only national data source on NRPF service provision.
When provided, support should be kept under review and steps taken to resolve the case; this may involve monitoring the progress of the parent’s immigration case over NRPF Connect and working in partnership with the Home Office.
Families should not be refused assistance solely because they have NRPF (because this in itself does not exclude them from social services assistance), or because the local authority does not receive funding from central government to provide support to NRPF families.
- The requirement to undertake a child in need assessment is based on an appearance of need and is not dependent on the parent’s immigration status or whether the parent has a pending immigration application. The absence of a pending immigration application should not prevent an assessment being carried out or interim support being provided when this is necessary. The parent’s immigration status and whether any applications have been made will be relevant factors when determining whether the exclusions to support apply.
- Section 17 of the Children Act 1989 requires local authorities to assist the family as a whole; offering to accommodate the child alone or taking the child into care will rarely be an appropriate response in the absence of any safeguarding concerns in addition to the risk to the child arising from the parent’s lack of housing and income.
- Inform the family how and why information about them may be shared with other parties, and confirm this by written agreements signed by the lead applicant. Permission will be required in order to share or obtain information from legal representatives and voluntary sector agencies.
This guidance is structured according to the two stages that a local authority will usually follow to establish whether it has a duty to provide support to a family with NRPF:
- Pre-assessment screening: establishing the facts of the case prior to assessment.
- Assessing need: determining eligibility for the provision of services.
For further information see sections: