This chapter sets out how a local authority must assess the needs of a child within a family that has no recourse to public funds in order to determine whether accommodation and financial support can be provided under section 17 of the Children Act 1989.

6.1 Statutory requirements

A family’s eligibility for section 17 support will be determined by the outcome of a child in need assessment. When a child is found to be a ‘child in need’ due to their parent’s inability to obtain suitable accommodation or to meet the costs of the child’s basic needs, the courts have been clear that the power under section 17 to provide accommodation and financial support can amount to a duty when there is no alternative support available. For more information, see section 1.2.

A child in need assessment must be undertaken in line with the statutory guidance, Working Together to Safeguard Children. This may be referred to as a ‘child in need’, ‘child and family’ or ‘single’ assessment. The assessment must be carried out within 45 working days of receiving the referral.

A ‘child in need’ as defined at section 17(10) of the Children Act:

(10) For the purposes of this Part a child shall be taken to be in need if—
(a) 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;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) 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.

The assessment must be child-centred and focus on action and outcomes for children, including the provision of services in relation to all of the child’s identified needs, including any relating to a disability.

Working Together to Safeguard Children states, at page 53:

To fulfil [the section 17] duty, practitioners undertake assessments of the needs of individual children, giving due regard to a child’s age and understanding when determining what, if any, services to provide.

Every assessment must be informed by the views of the child as well as the family, and a child’s wishes and feelings must be sought regarding the provision of services to be delivered. Where possible, children should be seen alone. Where a child requests to be seen with a trusted adult, this should be supported. A child’s communication needs should be taken into account. When assessing children in need and providing services, specialist assessments may be required and, where possible, should be co-ordinated so that the child and family experience a coherent process and a single plan of action.
…
161. Assessments should be child-centred and responsive to the voice of the child. This means decisions should be made in the child’s best interests, rooted in child development, age-appropriate, sensitive to the impact of adversity and trauma and informed by evidence. Observation can be an important way to get the perspective of babies, infants, and non-verbal children. In the case of disabled children, practitioners should consider whether any specialist communication support is required and consider how advocacy services can support the child to communicate their views.

The guidance recommends that a conceptual model is the best way to deliver a comprehensive assessment for all children, giving an example at page 57 which investigates three domains:

• the child’s developmental needs
• the capacity of parents or carers (resident and non-resident) and any other adults living in the household to respond to those needs
• the impact and influence of the family network and any other adults living in the household as well as community and environmental circumstances

For an assessment to comply with the statutory guidance and remain child-focused, the family’s communication requirements will need to be met. The child and parent will need to be able to fully understand the social worker’s questions and any findings that are presented to them. When a parent or child is not a fluent English speaker, it will be necessary to use a council-approved interpreting service. It is good practice to employ an interpreter when a family’s first language is not English in order to ensure that they can fully participate in and understand the assessment process.

Families have the right for an appropriate representative to accompany them to meetings, such as a support worker from an independent advocacy organisation. In a complaint investigation, Sandwell Metropolitan Borough Council (18 005 804) (Local Government  & Social Care Ombudsman, November 2019),  the Ombudsman found the council to be at fault for failing to allow a parent to have her representative present in assessment meetings.

It is essential that accurate records of enquiries and the parent and children’s responses are maintained throughout the assessment process. The courts will give significant weight to the professional views of social workers and, when making findings about the lawfulness of an assessment, will focus on what was known to the social workers at the time having made reasonable enquiries. (See: R (SN, PN and CN) v London Borough of Enfield & London Borough of Haringey [2019] EWHC 793.)

The family would need to be provided with the outcome of the assessment in writing, which may also need to be explained to them using an interpreter.

6.1.1 Identifying a lead practitioner

In order to determine which practitioner will lead the needs assessment, it will be necessary to follow the guidance in Working Together to Safeguard Children as well as any procedures specified by the local safeguarding children partnership.

Although consideration of the parent’s financial circumstances will be an important aspect of an assessment for a child in a family with no recourse to public funds, this must not be the sole focus, as a holistic approach must be taken when considering an individual child’s needs. Therefore, the lead practitioner must hold appropriate social work skills and expertise. Where a local safeguarding children partnership specifies in its procedures that a child in need assessment must be carried out by a qualified social worker, then this would equally apply to a child in a household with no recourse to public funds.

Working Together to Safeguard Children states:

156. Once the referral has been accepted by local authority children’s social care, a social work qualified practice supervisor or manager should decide, with partners where appropriate, who the most appropriate lead practitioner will be and with the lead practitioner’s agreement, allocate them in line with the local protocol.

157. The lead practitioner role can be held by a range of people, including social workers. When allocating the lead practitioner, local authorities and their partners should consider the needs of the child and their family to ensure the lead practitioner has the time required to undertake the role. The lead practitioner should have the skills, knowledge, competence, and experience to work effectively with the child and their family. The lead practitioner should always be a social worker for child protection enquiries.

158. Lead practitioners should have access to high quality supervision.

6.2 Impact of homelessness or the parent having insufficient income to meet the child’s basic needs

Families with no recourse to public funds typically present to children’s social care when they are experiencing homelessness or a change in financial circumstances that has been caused by other events affecting the family, such as illness, an eviction, domestic abuse, or a relationship breakdown. The impact of such events on the child must be fully considered within the assessment.

When a family with no recourse to public funds is homeless or at risk of homelessness, or the parent has insufficient income to meet their child’s basic needs, the courts have been clear that section 17 will be engaged to provide accommodation and financial support to the family.

A child without accommodation will be a child in need. (See: R v Northavon District Council, Ex p Smith [1994] 2 AC 402.)

A child who is lacking food, clothing, or suitable accommodation will be a child in need due to the adverse impact not having access to such things is likely to have on their health or development. In the case of a family where the parent had leave to remain with a NRPF condition, the courts found that ‘the local authority is empowered [under section 17] to rescue a child in need from destitution where no other state provision is available’. (See: R (AC & SH) v London Borough of Lambeth Council [2017] EWHC 1796, paragraph 42.)

Children’s social care will need to refer to any guidance that the local safeguarding children partnership provides about thresholds or indicators of need. Homelessness, inadequate or unsafe living arrangements, and the inability to afford food, shelter, clothing and other basic items are all likely to be indicators that a statutory child in need intervention is required.

6.3 Assessing the parent’s financial means

For a child within a family that has no recourse to public funds, it will be necessary to consider whether the parent’s inability to access benefits or other services due to their immigration status is relevant to the needs assessment. Where a family is at risk of homelessness, or the parent has insufficient income to meet their child’s basic needs, an analysis of the family’s financial needs will be an important aspect of the assessment in order to determine whether accommodation and financial support can be provided.

In several legal challenges brought against local authorities, the courts have examined the lawfulness of assessments relating to section 17 support for families with no recourse to public funds. These judgements provide local authorities with several guiding principles that can be followed when assessing the needs of a child within a family with no recourse to public funds.

The local authority will need to:

• Individually assess each child’s needs by reference to the statutory guidance and assessment framework rather than adopting a separate policy for a particular group of children. (See: R(C, T, M and U) v London Borough of Southwark [2016] EWCA Civ 707, paragraphs 16 & 18.)
• Gather information which is adequate for the purpose of performing its statutory duty under section 17 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. (See: R (C, T, M and U) v London Borough of Southwark, paragraph 12.)
• Undertake an evaluative assessment and consider the family situation in the round, with thorough investigations and properly documented findings (See: R (C, T, M and U) v London Borough of Southwark & R (BC) v Birmingham City Council [2016] EWHC 3156.)
• Ensure that it identifies and assesses any other needs a child has, such as needs relating to a disability, in addition to those relating to the family’s lack of accommodation and resources. (See: R (AC & SH) v London Borough of Lambeth Council.)

When a parent is unable to obtain adequate accommodation or has insufficient income to meet their child’s basic needs, such as food, heating, and clothing, the needs assessment must consider what impact this has on the child’s personal development and well-being, alongside any other relevant factors. In such cases, the social worker will need to identify whether any funds and resources are available to the parent to acquire suitable housing and meet the costs of the child’s basic needs, taking into account the impact of any immigration restrictions. The sustainability of any identified sources of support must also be considered.

Section 17(8) states:

Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.

There is no specific test or criteria to establish whether a child is in need due to their parent’s inability to obtain suitable accommodation or meet the costs of their child’s basic needs. Thresholds, such as the asylum support definition of destitution, should not be applied. Instead, children’s social care will need to explore the family’s housing and financial circumstances within a holistic child in need assessment.

Where there are several indications that alternative support may be available to a family, the local authority would need to conduct full enquiries about the availability and suitability of such support, as well as providing the parent with an opportunity to address any concerns raised by the local authority. (See: R (BC) v Birmingham City Council.)

In some instances, a local authority might determine that a family has the financial means to access accommodation and therefore the child is not in need. However, before reaching such a conclusion, the local authority must:

• Specify which friends or family members would be able to provide accommodation, if relying on those
• Properly consider the cost of staying in private accommodation or a B&B against the parent’s available resources
• Consider the impact on the child’s welfare if temporary accommodation solutions are being proposed, such as hotel stays
• Identify whether the parent has a right to rent
• When the parent does not have a right to rent, refer to the Right to Rent: Landlords’ Penalties guidance (Home Office, November 2020) to establish if they are likely to be granted permission to rent

(See: R(BC) v Birmingham City Council & R (JA) v The London Borough of Bexley [2019] EWHC 130 (Admin).)

6.4 Addressing information gaps and credibility

There are many reasons why a parent may be unable or unwilling to provide some of the information that they have been asked for regarding their address history or financial circumstances. As well as understanding what restrictions the parent may have been subject to due to their immigration status, as described in section 6.5, social workers will need to ensure that they are making relevant enquiries and providing the parent with an opportunity to respond to any concerns that they have about the information provided. The courts have provided some guidance about how to approach information gaps and address credibility issues within a needs assessment.

The courts have found that:

• When a family is clearly homeless or destitute at the present time, concerns regarding the parent’s credibility or previous access to resources will not be relevant. (See: R (JA) v the London Borough of Bexley.)
• When a family has supported themselves in the UK without access to public funds for a number of years, the local authority must enquire why and how this has changed.
• The family will need to comply with questions about their support history, providing evidence if this is available. (See: O v London Borough of Lambeth [2016] EWHC 937.)
• Any concerns about gaps or inconsistent information must be put to the family and their response will need to be properly considered. (See: MN & KN v London Borough of Hackney [2013] EWHC 1205 (Admin), N and N v London Borough of Newham & Anor [2013] EWHC 2475 (Admin) & O v London Borough of Lambeth.)
• The assessment will be procedurally unfair if concerns are not put to the parent before adverse inferences are drawn. (See: R (S&J) v London Borough of Haringey [2016] EWHC 2692.)
• When the parent fails to provide information that has been requested, the local authority can only draw adverse inferences if the correct investigations have been made and any concerns are put to the parent. Decisions must be based on detailed and documented investigations that provide the parents with adequate opportunity to supply the requested information (See: MN & KN v London Borough of Hackney, N and N v London Borough of Newham, and O v London Borough of Lambeth.)

6.5 Impact of immigration-based exclusions

When a parent’s ability to provide their child with food, clothing and shelter is being considered in the needs assessment, it will be necessary to be aware of immigration-related restrictions that affect what the parent can access or be expected to access. These restrictions may also limit the documents that would ordinarily be available to a family to evidence their financial circumstances. As families with no recourse to public funds can be vulnerable to exploitation and criminality, it will be necessary to be alert to any related safeguarding risks that may arise.

Establishing a family’s entitlement to services can be complex and assumptions should not be made about what they can or cannot access. The information in this section is intended to assist a social worker’s understanding of how a parent’s immigration status affects the family’s entitlements and determines what restrictions they face.

6.5.1 Parents with leave to remain

A parent who has limited leave to remain with a ‘no recourse to public funds’ (NRPF) condition will usually have permission to work. If they lose their employment, cannot work due to caring responsibilities or ill-health, or are working but have a low income, they will not be able to claim universal credit, child benefit, or disability benefits.

There are several additional financial pressures that parents who have leave to remain with NRPF face:

• High fees when they extend their leave to remain – for example, an adult making an application on the partner or parent route will need to pay £3,845.50 to extend their visa every 30 months until they are able to obtain indefinite leave to remain (often after 10 years)
• No access to legal aid funding for immigration advice when they have a low income
• No access to free childcare hours for working parents or tax-free childcare
  Ineligible for the healthy start scheme, unless they have a British child

Therefore, even when a parent is working and has a regular income, being subject to a NRPF condition can significantly impede their ability to afford to meet their child’s basic needs. In such cases, the local authority will have a positive duty to provide accommodation and/or financial support. (See: R (AC & SH) v London Borough of Lambeth.)

In some cases, the local authority may only be required to provide section 17 support for a short period if the parent is able to apply to the Home Office for a change of conditions to lift the NRPF condition or for the Migrant Victim of Domestic Abuse Concession. For more information about these and other immigration options, see chapter 9.

6.5.2 Parents with a student or work visa

Local authorities may receive a request for support from a parent who has a student or work visa, such as the health and care worker visa, or from a parent with a dependent partner visa who has separated from the student or work visa holder.

Students and skilled workers will usually be required to meet financial requirements in order to obtain their visa by evidencing that they had a specified amount of money available to them. In some cases, it may be appropriate to request more information about the visa application from the Home Office. However, unless the family entered the UK relatively recently and the funds are still available to them, this information is unlikely to have a significant bearing on the outcome of the needs assessment.

Students, skilled workers, and health and care workers are tied to the sponsorship of a particular educational institution or employer. Therefore, it will be important to be aware of the consequences for the visa holder and their family if the sponsorship arrangement ends. The sponsorship arrangement also affects a parent’s ability to take on additional employment if they are struggling financially. If the parent appears to no longer be studying or working in accordance with their sponsorship arrangement, they would need to be signposted to appropriate advice as their sponsorship arrangement may not necessarily end immediately. Students can be advised to contact their institution’s international student advice service to discuss their situation if they are struggling to maintain their studies and workers can be signposted to an employment rights service and to immigration advice. For more information about employment rights services, see the NRPF Network website.

Educational institutions and employers are required to inform the Home Office when a sponsored student or employee stops studying or working in accordance with the sponsorship arrangement. The Home Office will then curtail (end) the student or worker’s visa and give them a short period of 60 days in which they must find a new employer or course, apply for leave to remain on a different basis, or leave the UK. When the Home Office revokes the sponsor licence of an educational institution or employer, the leave of any sponsored students or workers will be curtailed. The leave of any family members with dependant visas can also be curtailed at the same time as the worker or student. Families that have their leave curtailed will be at high risk of overstaying and losing their lawful status. Any families at risk of having their leave curtailed would need to be signposted to immigration advice as soon as possible and workers to employment services that may be able to assist them to find a new sponsor that meets their visa requirements.

It is also important to be aware of any indicators that a sponsored worker has been subjected to abuse or mistreatment by their employer. There have been several reports of widespread mistreatment of health and care worker visa holders by their employers. Where indicators of modern slavery are identified, a referral to the National Referral Mechanism will need to be made. The Department of Health and Social Care provides information for health and care worker visa holders, including a list of organisations that can advise on employment rights.

When a sponsored student or worker is complying with their sponsorship requirements but has insufficient income or funds to adequately accommodate or support their family, they will have limited ability to increase their income through employment.

For example:

• A parent with a student visa will usually be restricted to working 20 hours/week
• A parent with a work visa will be limited in any additional work they can carry out when they are sponsored by an employer
• Some skilled workers, including health and care workers, may have an annual salary of £23,200, which is significantly lower than the household income of a working parent with children who claims universal credit
• Partners with dependant visas will usually have permission to work full time but cannot access free childcare for working parents or tax-free childcare, so it may not be affordable for them to take up employment
• Whilst a parent continues to comply with the terms of their sponsorship, the local authority may be required to support the family on a long-term basis if it has assessed that the child is in need due to the parent having insufficient income to obtain suitable accommodation or to meet the costs of their child’s basic needs. In such cases, there may only be limited action that a family in this position can take to establish a pathway off section 17 support. For more information about pathways off support, see chapter 9.

6.5.3 Parents without lawful status

When a parent is without lawful status, they will be subject to significant restrictions intended to impede their ability to live in the UK. These policies are often referred to as the ‘hostile (or compliant) environment’.
When a parent is without lawful status, they may not have access to the usual documents that they might be expected to produce to evidence their financial circumstances, and some alternative support options will not be available to a family.

A parent who is without lawful status in the UK cannot:

• Claim public funds (benefits and local authority housing assistance)
• Work legally
• Open a new current account at a bank or building society, and could have a pre-existing account closed or frozen
• Rent or sub-let a property from a private landlord in England, or be a paying lodger, unless the Home Office grants permission to rent on an exceptional basis

Additionally, when a landlord has reasonable cause to believe that a tenant/occupier does not have valid leave to remain, they may be required to end a tenancy and can undertake possession proceedings without having to obtain a court order. Therefore, eviction procedures can be quicker for families without lawful status.

Local authorities will need to consider how immigration restrictions impact on any findings they make in the needs assessment.

For example, a parent without lawful status:

• Cannot always be expected to provide bank statements or the usual evidence of employment.
• Cannot be expected to work in order to support their family, as they would be committing a criminal offence by doing so.
• Does not have the right to rent, unless they are granted permission to rent, so cannot be expected to source accommodation in the private-rental sector, including hotel or B&B accommodation, even if they have sufficient funds to do so. (See: R (U & U) v Milton Keynes Council [2017] EWHC 3050.)

When a parent is without lawful status in the UK, schedule 3 of the Nationality, Immigration and Asylum Act 2002 places a bar on the provision of accommodation and financial support under section 17 of the Children Act, where the family are able to return to their country of origin to avoid destitution in the UK. A human rights assessment will need to be undertaken in addition to the needs assessment. In such cases, the child in need assessment should also address the child’s needs within the country of origin and specify how they may be met. This information will need to be referred to in the human rights assessment if the family’s ability to return to their country of origin is being considered. For more information about human rights assessments, see section 4.3.

There are many reasons why a parent may have no lawful status in the UK and why they have so far been unable to obtain leave to remain, or ‘regularise’ their stay. For example, families are likely to face difficulties accessing free, or good quality, legal advice and may not be able to afford the high fees required for most types of immigration applications. When section 17 support is provided (on an interim or long-term basis), the parent will need to be assisted to access immigration advice so that they can find out what their options are. As section 17 support will only end for the majority of families following a grant of leave to remain, it is also beneficial to the local authority that a family accesses immigration advice as soon as possible. For more information about pathways off support, see chapter 9.