When a family presents to a local authority requesting accommodation and/or financial assistance, there will be some key considerations that will need to be made as part of the process to determine whether support can be provided:
- Whether there is a duty to undertake a child in need assessment.
- What the parents’ nationality and immigration status is in order to:
- ascertain eligibility for employment, welfare benefits or asylum support, and
- determine whether the family can only receive support if this is necessary to prevent a breach of their human rights or European Treaty rights.
- Whether emergency support needs to be provided whilst assessments are being carried out.
At this first point of contact the family can be asked for information relating to their financial circumstances, which will be later used to inform the child in need assessment to determine whether the family are eligible for support. Families should not be refused support without proper enquiries being made to establish the needs of the child.
For further information see sections:
- 2.1 Duty to undertake a child in need assessment
- 2.2 Checking immigration status
- 2.3 Exclusions from support
- 2.4 Emergency support
- 3 Assessing need under section 17
2.1 Duty to undertake a child in need assessment
The research report undertaken by COMPAS at the University of Oxford, Safeguarding children from destitution: local authority responses to families with ‘no recourse to public funds’, found that the majority of NRPF families approached or were referred to local authorities at a point of crisis after an (often lengthy) period of stability.
Depending at what point the family comes into contact with the local authority, it may be appropriate to explore what preventative action can be taken to sustain the family’s living arrangements in order to avoid loss of accommodation and/or income. The local authority will consider whether any preventative action may be possible, but such intervention, even if effective initially, will not be sufficient if it cannot be maintained or the circumstances of the child are such that a child in need assessment is required.
For further information see section:
2.1.1 Threshold to undertake an assessment
Regulation 5(1)(a)(i) of the Local Safeguarding Children Boards Regulations 2006 requires each board to develop policies and procedures in relation to:
“..the action to be taken where there are concerns about a child’s safety or welfare, including thresholds for intervention.”
Each board is required to publish guidance and list factors that will require a child in need assessment to be carried out. The following are examples of factors which are likely to apply to a child in an NRPF household:
- The child regularly does not have adequate food, warmth, shelter or essential clothing.
- When a parent’s limited financial resources or having no recourse to public funds increases the vulnerability of the children to criminal activity e.g. illegal working.
- When a parent is unable to provide for material needs, which negatively impacts on the child.
The threshold for assessing a child in an NRPF household is therefore low; a child in need assessment is likely to be required for any family presenting on the basis that they do not have adequate accommodation and/ or sufficient income to meet their living needs because of their inability to access benefits or employment, or where the child’s circumstances suggest this may be the case.
2.1.2 Which authority must undertake an assessment?
Section 17(1)(a) of the Children Act 1989 specifies that:
“It shall be the general duty of every local authority… to safeguard and promote the welfare of children within their area who are in need.”
The courts have considered how to interpret the phrase ‘within their area’ in cases involving families who have been found to be intentionally homeless under homelessness legislation, and have subsequently needed to be referred to social services for support under section 17 when housing duties have come to an end.
The leading judgment that considers the meaning of ‘within their area’ is R (Stewart) v LB Wandsworth & Ors (2001). The Court found that the duty to assess under section 17(1)(a) of the Children Act 1989 is triggered by the physical presence of a child in need in the local authority’s area.
This was reaffirmed in R(M) v Barking and Dagenham LBC and Westminster LBC (2002), where Westminster Council had placed a family in temporary homeless accommodation in Barking and Dagenham. Barking and Dagenham was found to be the authority responsible for assessing the child’s needs under section 17 Children Act 1989 when the family were evicted from the temporary accommodation.
In the recent case of R (BC) v Birmingham City Council (2016), a Jamaican overstayer and her six year old son had been living with the mother’s partner in London Borough of Bromley. The relationship broke down in early July 2016 and the mother moved in with her cousin in Birmingham. Her son stayed with a friend in London until October, when he joined his mother in Birmingham. A few days later, the family requested assistance from Birmingham City Council.
Birmingham City Council did not initially undertake a child in need assessment, instead offering the family transport back to LB Bromley, asserting that the other local authority was responsible because that was the family’s area of origin in the UK. The judge found that, as the child had been living in Birmingham, the child’s physical presence was sufficient to establish that it fell to Birmingham City Council to assess the child’s needs under section 17, and the authority had acted unlawfully by asserting that the family’s claim for support should be made at LB Bromley. The judge noted that, although a local authority would be responsible for assessing need that arose whilst the child was living in its area, this does not mean that a second local authority would have no responsibility should the family move into its area.
More than one local authority may have the duty to undertake a child in need assessment. In the Stewart case, the child was attending school in a different local authority area to that where they were living. The duty to undertake an assessment was found to apply to both local authorities but the Judge stated that:
“…in a case where more than one authority is under a duty to assess the needs of the child, there is clearly no reason for more than one authority to in fact assess a child’s needs and there is a manifest case for co-operation under section 27 of the Children Act and a sharing of burden by the authorities.”
In instances where responsibility for undertaking an assessment or providing services is disputed, the courts have been very clear that a child’s needs should be met whilst responsibility is determined.
Local authorities are required to co-operate under provisions set out in the Children Act 1989 and Children Act 2004:
- Section 27 of the Children Act 1989 imposes a duty on other local authorities, local authority housing services and health bodies to cooperate with a local authority in the exercise of that authority’s duties which relate to local authority support for children and families (under Part 3 of the Act). Where an authority requests the help of another authority or body, assistance must be provided if it is compatible with that organisation’s statutory or other duties and obligations and does not unduly prejudice the discharge of any functions.
- Section 11 of the Children Act 2004 requires local authorities in England to make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The explanatory notes to the Act states that the aim of this duty is to:
“..ensure that agencies give appropriate priority to their responsibilities towards the children in their care or with whom they come into contact; encourage agencies to share early concerns about safety and welfare of children and to ensure preventative action before a crisis develops.”
2.2 Checking immigration status
It is important for local authorities to establish the nationality and immigration status of a family requesting accommodation and/or financial support to ascertain whether:
- the parents have any entitlement to public funds, employment or Home Office asylum support;
- exclusions to section 17 support apply; and
- the family have any immigration claims pending with the Home Office or appeal courts when they are in an excluded group.
Local authorities will check a family’s immigration status directly with the Home Office but the family can also be asked to provide evidence of their nationality and immigration status in the UK.
For non-EEA nationals, evidence of immigration status may be provided in the form of documents issued by the Home Office in the UK or overseas Entry Clearance Posts. Various documents are issued depending on the type of immigration permission given and date it was granted. Some examples of documents are:
- Immigration status document
- Visa/ residence permit in passport
- Stamp in passport
- Biometric residence permit (BRP)
- Asylum registration card (ARC)
- Home Office issued convention travel document or certificate of travel
- EEA family permit/ residence card/ permanent residence card/ derivative residence card
- Home Office letter specifying what type of immigration permission has been granted
The Council of the European Union maintains a public register of documentation issued by European Union countries. Note that the register it is not complete, so some UK immigration documents may not appear on the register.
There will be instances when a person may be unable to provide original documentation, for example, when they have submitted their passport and/or BRP to the Home Office with a pending application, or when the Home Office has retained documentation following a refusal of an application.
Sometimes Home Office systems do not show that an application has been made, for example, if it has only recently been submitted, so this may not be identified in a status check. In such instances, alternative evidence provided by the family or their legal representative can be accepted as sufficient and the Home Office should be notified that an application has been made. Such evidence could include an acknowledgement letter from the Home Office that confirms the date the application was made, or a copy of the application and proof of postage. A legal representative may also be able to provide a letter to confirm their client’s current status and progress of any pending applications.
For further information see sections:
2.2.1 Continuing leave (3C leave)
A person will continue to be lawfully present after their leave to remain has expired when they have applied to extend their leave to remain when certain conditions are satisfied that are set out in section 3C of the Immigration Act 1971. When a person has 3C leave, any conditions attached to their previous leave will continue to apply until their application or appeal is concluded, for example, they may retain permission to work or recourse to public funds.
3C leave applies when a person submits an application for leave to remain before their previous leave expires and is still waiting for a decision from the Home Office after their leave has expired.
If the application is refused, 3C leave will only continue when a person is appealing this decision when:
- the application is refused after the person’s leave to remain has expired; and
- the person has lodged their appeal within the given deadline.
3C leave will stop if a person lodges an appeal after the given deadline, even if the court accepts it as being made ‘out of time’.
Appeal time limits vary depending on the stage that the case is at in the appeal process so it will be necessary to need to seek advice from the person’s legal representative or the Home Office to establish whether they have 3C leave and remain lawfully present. When 3C leave ends the person will become an overstayer.
2.2.2 EEA nationals and their family
European Economic Area (EEA) nationals and most family members of EEA nationals are not required to obtain documentation from the Home Office to confirm their right to live in the UK, because the right to reside under European law is acquired on the basis of fact. The Home Office will usually only be able to provide information about an EEA national or their family member when a person has applied for a document to confirm their right to reside or derivative right to reside in the UK, for example, an EEA registration certificate, family permit, residence card, permanent residence card, worker registration card or derivative residence card.
Even if an EEA national or family member has a Home Office document, if their circumstances have changed since this was issued, the document may not be sufficient to establish whether they have access to welfare benefits and further enquiries will need to be made to find out whether they have a right to reside.
For further information see sections:
2.2.3 How to request a Home Office status check
The Intervention and Sanctions Directorate (ISD) at the Home Office is responsible for providing information to local authorities, and a status check for a person requesting support can be requested by:
- creating a new case on NRPF Connect, or
- sending an email to: EvidenceandEnquiry@homeoffice.gsi.gov.uk.
Local authorities signed up to use the NRPF Connect database will need to create a new case which will alert the Home Office to provide an immigration status check within the timescales set out in the Service Level Agreement. Once a case has been created, the local authority can obtain further updates via NRPF Connect from the Home Office whilst the person remains in receipt of support, and must use the database to update the Home Office of any change of circumstances, for example, when a person has submitted a new immigration application.
Other local authorities will need to contact the Home Office by email and will be required complete a form detailing why the information is needed.
2.3 Exclusions from support
The primary reason for checking nationality and immigration status is because local authorities are required to establish whether a parent is in one of the groups of people who are excluded from receiving ‘support and assistance’ under section 17 of the Children Act 1989.
Schedule 3 of the Nationality Immigration Asylum Act 2002, sets out five groups of people who are ineligible for support:
- A person granted refugee status by another EEA State and their dependants.
- EEA nationals and their dependants (excluding UK nationals).
- A person who is not seeking asylum and is unlawfully present in the UK and their dependants:
- Visa overstayer
- Illegal entrant
- Refused asylum seeker when the person claimed asylum in-country (usually at the Asylum Screening Unit in Croydon), rather than at port of entry (for example, at an airport immediately on arrival to the UK before passing through immigration control)
- Refused asylum seekers who fail to comply with removal directions, and their dependents, i.e., they have been issued with removal directions that provide a set time and means of leaving the UK and have failed to take this up.
- Refused asylum seekers with dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.
Paragraph 1 of Schedule 3 sets out the legislation under which such migrants are excluded from receiving assistance. The legislation relevant to families is set out in the table below.
|UK region||Excluded legislation|
|England||Section 17 of the Children Act 1989|
|Wales||Part 4 of the Social Services and Well-being (Wales) Act 2014|
|Scotland||Sections 22 of the Children (Scotland) Act 1995 (c. 36)|
|Northern Ireland||Article 18 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2))|
Children are not excluded by Schedule 3, regardless of their nationality and immigration status. However, section 17(1)(b) of the Children Act 1989 imposes a general duty to promote the upbringing of children by their family, so local authorities are required to resolve the situation of the family as a whole. As accommodation and financial support is provided to the family, when parents fall into one of the excluded categories, the family as a whole will be treated as excluded. Whilst a child remains living with their parents, the duty of the local authority to provide for the child’s needs depends on whether the parent is ineligible under Schedule 3.
Local authorities are not prohibited by Schedule 3 from providing assistance (other than accommodation and financial support) directly to a child in an NRPF family, for example, help required to meet the needs of a disabled child.
When parents are in an excluded group, the exclusion does not mean that support can automatically be refused to the family because there is an important exception to the exclusion: where parents are caught by the restrictions to support, paragraph 3 of Schedule 3 requires the local authority to provide support and assistance where this is necessary for the purpose of avoiding a breach of the family’s human rights or rights under the European Treaties.
The purpose of Schedule 3 is to restrict access to support to a person in an excluded group when they can no longer self-support themselves and their family in the UK and when they can return to their country of origin. This means that along with establishing eligibility for services by undertaking a child in need assessment, local authorities must consider whether the family can freely return to their country of origin, where the parents may be able to access employment and receive services, therefore avoiding homelessness and destitution.
In order to determine whether a family can freely return to the parent’s country of origin, the local authority must undertake a human rights assessment. This will include establishing whether the family are practically able to leave the UK, as any barriers preventing return will need to be identified and cleared before return can be fully considered.
For further information see section:
2.3.1 Duty to inform the Home Office
Paragraph 14 of Schedule 3 requires a local authority to inform the Home Office when a person requests assistance if the person is:
- suspected or known to be unlawfully present in the UK,
- a refused asylum seeker who has not complied with removal directions, or
- a refused asylum seeker with dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.
This duty should be explained to a person when they present to the local authority and by any agencies referring them to social services. Local authorities using the NRPF Connect database will meet this requirement when they create a new case.
For further information see section:
2.3.2 Families not excluded from support
The Schedule 3 exclusions do not apply to all families with NRPF. A family will not be excluded from receiving assistance under section 17 where the parent:
- has limited leave to enter or remain in the UK with the NRPF condition;
- a derivative right to reside under European law, for example, as:
- Primary carer of a British (or other EEA national) child (Zambrano carer),
- Primary carer of a child (in education) of an EEA worker,
- Primary carer of a self-sufficient EEA national child;
- is an asylum seeker; or
- is a refused asylum seeker who claimed asylum at port of entry (providing the other categories specific to refused asylum seekers do not apply).
Such families are not excluded from section 17 support and would need to be provided with assistance if they are found to be eligible for this following a child in need assessment.
Households, where the parent is lawfully present, for example, has limited leave to remain with NRPF, or a derivative right to reside under European law, make up about a quarter of the local authority NRPF caseload. When a parent has limited leave to remain with NRPF, they can work but will be unable to claim benefits to top up a low income, such as housing benefit and tax credits. They are also unable to access social housing. As this status is commonly awarded to sole carers of a British Citizen child, or child who has lived in the UK for seven years, the parent will often face difficulties finding employment and funding childcare to enable them to afford accommodation and provide for the family’s living needs. When the child is ‘in need’ as a result of this, local authorities will be required to provide accommodation and/or financial support in the absence of such benefits. Where the parent is a Zambrano carer and their child is in need because they cannot afford housing or to meet their family’s living needs, the local authority will be under a positive duty to provide accommodation and/or financial support to the family under section 17 of the Children Act 1989. In the case of Sanneh & Ors v SSWP (2015), the Court of Appeal found that the government’s policy of restricting access to mainstream benefits and housing for this group of people was lawful because section 17 provides a safety net to protect destitute children. For more information see our Factsheet:
For further information see sections:
2.4 Emergency support
Local authorities will undertake a detailed investigation into the family’s financial and housing circumstances to establish whether the family will be eligible for support under 17 of the Children Act 1989.
Under section 17, a local authority has the power to provide emergency housing and/or financial support to a family when a child’s welfare is at risk whilst assessments or enquiries are being carried out.
Refusing to provide support to a family who would otherwise be homeless and destitute would be a breach of Article 3 of the European Convention on Human Rights. To leave a family without accommodation or any financial support, when there is no alternative support available whilst assessments are being undertaken is likely to be unlawful.