This chapter provides information to inform best practice in developing a subsistence policy in order to meet a child’s needs through providing financial support to a family under section 17 of the Children Act 1989.

8.1 Developing a subsistence policy

Each local authority is responsible for determining how much financial support (subsistence) is provided to a family supported under section 17 of the Children Act. It will be necessary to establish a policy to clarify how levels of support are determined, so that a consistent approach is taken across all teams and decision-making is transparent. Within its policy, the local authority may also set minimum levels of support that act as a baseline for determining the child and their family’s full support package.

Providing a comprehensive support package that meets a child and their family’s needs will promote independence, reduce the complexity of individual assessments of need, and reduce staff-time spent dealing with issues that arise when families struggle to cope financially. As families are, on average, supported under section 17 for 1.5 years, paying a minimum level to cover essential living items may not assist financial independence or promote a child’s welfare if only the immediate, rather than longer-term, needs of the child are being met.

As section 17 is a target duty and local authorities need to comply with the statutory guidance, Working Together to Safeguard Children, any decision regarding the level of financial support provided to a family must be based on an assessment of the child’s needs. Therefore, in all cases, meeting a child’s identified needs must remain at the forefront of any policy.

It is recommended that subsistence policies are implemented with director-level agreement. There are significant resource implications for local authorities in the absence of government funding to contribute to the costs of delivering long-term support to families with no recourse to public funds. However, subsistence support only made up one-fifth of the total spend on accommodation and financial support of the 78 local authorities providing data through NRPF Connect in March 2024. Therefore, having a strategy to procure and manage accommodation is also necessary. For more information about providing accommodation to meet a child’s needs, see chapter 7.

Although the courts have now specified that the absolute minimum amount that a local authority must pay to meet a family’s essential living needs is equivalent to asylum support rates that are set by the Home Office, there will be many situations where families will need to be paid significantly more than the level of asylum support.

Regular formal and informal assessments of individual need must form part of a local authority’s subsistence rates policy to ensure that any arising needs are adequately met and existing needs are regularly reviewed. Feedback from families and empowering staff to use their discretion to meet individual needs will ensure that a child’s needs are not left wanting. It is also necessary to be responsive to any significant changes in case law and ensure that policies are regularly reviewed and any changes are implemented in a timely manner.

A subsistence policy will need to:

• Be compliant with the Children Act 1989, statutory guidance, and findings made by the courts relating to the provision of financial support under section 17 (as set out in section 8.2)
• Be consistent with the local authority’s corporate priorities and values
• Specify how the amount payable to a particular family will be established
• Specify how regularly a family’s needs will be reviewed and when the overall policy will be reviewed
• Specify how support will be administered to families
• Be made available to families receiving section 17 support
• Include information about how a family can request additional support and who they can contact if they are unhappy about the amount of support they are receiving

Where a local authority sets minimum support rates, the policy will need to specify:

• Under what circumstances the minimum rates can be varied to meet a child’s needs and to take into account any other regular income sources that the parent may have, such as child benefit
• How the minimum rates have been reached, including any benchmarking against levels of support paid by the Home Office, DWP, other local authorities, or whether other relevant information has been taken into account
• How any gaps in general provision for low-income families are covered, such as grants for school uniforms
• When and how rates will be varied as any amounts that the policy benchmarks against or refers to change

8.2 Statutory requirements

For all families with no recourse to public funds, any decision determining support levels must be undertaken lawfully, rationally and fairly, and be compatible with the family’s human rights. In order to implement section 17 of the Children Act and the statutory guidance, Working Together to Safeguard Children, all decisions must focus on meeting a child’s needs for the purpose of safeguarding and promoting the child’s welfare.

Although adopting standardised policies relating to accommodation and financial support provision for families will assist fair, rational and consistent decision-making, meeting an individual child’s assessed needs must remain the central consideration.

Given that section 17 support is often provided for lengthy periods, it will be important to consider how any financial support that is provided to a family adequately meets the child’s needs.

Section 17(6) allows a local authority to provide accommodation and financial support to meet a child’s needs:

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash.

The local authority is not limited with regards to the type of support that can be provided to meet a child’s needs under section 17. Schedule 2, part I, para. 8 of the Children Act states:

Provision for children living with their families
Every local authority shall make such provision as they consider appropriate for the following services to be available with respect to children in need within their area while they are living with their families—
(a) advice, guidance and counselling;
(b) occupational, social, cultural or recreational activities;
(c) home help (which may include laundry facilities);
(d) facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service;
(e) assistance to enable the child concerned and his family to have a holiday.

Support may need to be regularly reviewed to ensure that any changing needs are being addressed and met. Working Together to Safeguard Children states:

175. Judgements may need to be revised as a case progresses and further information comes to light. It is a characteristic of skilled practice that practitioners revisit their assumptions in the light of new evidence and take action to revise their decisions in the best interests of the individual child.

In R (C, T, M and U) v London Borough of Southwark [2016] EWCA Civ 707, the Court of Appeal was clear that section 17 of the Children Act is a target duty and support must meet a child’s assessed need. Therefore, the amount of financial support provided will depend on the social worker’s assessment of the child’s welfare needs and, if setting minimum support rates, there must be scope for flexibility within a policy to ensure the needs of an individual child are met. The local authority must undertake a rational and consistent approach to decision making, which may involve cross-checking with internal guidance or other statutory support schemes, so long as this does not constrain the local authority’s obligation to have regard to the impact of any decision on a child’s welfare.

Payments for the parents must also be made in addition to those considered appropriate to meet the needs of the children but are not required to exceed what is necessary to avoid a breach of the parent’s human rights. (R (PO & Ors) v London Borough of Newham [2014] EWHC 2561 (Admin)).

In R (BCD) v Birmingham Children’s Trust [2023] EWHC 137 (Admin), the court found that the absolute minimum level of financial support payable to all families is the equivalent of Home Office asylum support plus utilities and council tax. It will be unlawful to provide a family supported under section 17 with anything less than this.

The court went onto identify factors that the local authority would need to consider when establishing how much support to provide to a family. The court differentiated between families where the parent has leave to remain and families where the parent is without lawful status.

8.2.1 Support for families with leave to remain

In R (BCD) v Birmingham Children’s Trust, the court found that where a parent has leave to remain in the UK, section 17 is engaged ‘in full’ to a ‘welfare standard’ and the extent of the support provided will depend on an assessment of the child’s welfare needs.

When supporting a family to a ‘welfare standard’, this is likely to require a significantly higher level of support than the amount provided by the Home Office. The court was clear that support provided under section 17 is intended to meet a child’s welfare needs and can be more than meeting the family’s essential living needs (which asylum support is limited to covering). For example, the court noted that asylum support does not cover toys, books, or recreational or entertainment expenses (such as going to the swimming pool or to the cinema), whereas a local authority can provide family holidays and occupational, social, cultural or recreational activities, to a child in need under section 17. (Schedule 2 Part I, para. 8 of the Children Act 1989).

The court also found that a British child has a right to be treated in the same way as other British children, stating, at paragraph 193, that the local authority must “pay ‘due regard’ to that ‘difference’ with British children as one of many factors in the mix of a needs assessment”.

8.2.2 Support for families without lawful status

In R (BCD) v Birmingham Children’s Trust, the court drew a distinction between families where the parent is lawfully present and families that are subject to schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘schedule 3’). A family will be subject to schedule 3 when a parent is without lawful status in the UK and is not seeking asylum. For more information about schedule 3, see section 4.3.

When a parent is without lawful status (and is therefore subject to schedule 3), the local authority is only required to provide financial support under section 17 of the Children Act to the extent necessary to avoid a human rights breach, which in practice will involve providing an amount that covers the family’s essential living needs as an absolute minimum. In such cases, support must meet the child’s needs following an individual assessment and minimum rates must not be directly aligned with asylum support. However, for many families that are subject to schedule 3, the local authority will need to provide higher payments. When deciding how much support to provide to a family, it must consider other factors, such as whether there is an established family or private life (the parent may have made or be in the process of making an application to the Home Office to assert those rights), and whether a child is British (and therefore has a right to be treated in line with other children).

Although the court found that under the statutory framework, support for families that are subject to schedule 3 has a lower potential ceiling than support for families who are not affected by schedule 3, the situation is not so clear-cut when distinguishing these groups in practice due to the challenges families experience obtaining leave to remain.

Our data shows that the majority of families (70% in 2023-24) had their section 17 support ended following a grant of leave to remain, which was usually on a settlement route. Therefore, most families that are subject to schedule 3 will have a long-term future in the UK.

Families may have not been able to regularise their stay before approaching their local authority for support due to difficulties accessing free legal advice to successfully navigate complex immigration rules and prohibitive immigration application fees. Additionally, some children may be entitled to register as British citizens but may have been unable to register due being unaware of their rights or that they might qualify for a fee waiver to cover the high cost of an application.

Immigration status is fluid, so a situation could arise where a family enters support with leave to remain but subsequently overstays, and therefore may be subject to different minimum rates of support if a local authority has implemented a policy to differentiate its rates based on the parent’s immigration status.

Taking account of these considerations, although local authorities may pay a lower level of support to families affected by Schedule 3 in line with R (BCD) v Birmingham Children’s Trust, paying all families at a ‘welfare standard’ may be the most practical way to ensure that the long-term welfare needs of all children receiving section 17 support are adequately met.

Ultimately, payments for families that are subject to schedule 3 must not be directly aligned with asylum support rates or be incompatible with section 17 duties, and an individual child’s assessed needs must be adequately met in all cases.

8.3 Setting minimum rates

A subsistence policy must allow for flexibility to ensure the needs of an individual child are met but a local authority can set rates specifying minimum levels of support, which can be used as a starting point to establish the amount a family will require in order to meet a child’s assessed needs.

Where a local authority decides to include minimum rates in its policy, it can refer to statutory rates of support and other sources of information to help determine its own rates. Any benchmarking must be referenced and resulting decisions explained in the policy.

Rates could be set on a per-person basis (following the asylum support model) or according to household size (in line with universal credit payments).

As understanding the basic cost of living in a particular area can be a complex exercise, obtaining feedback or input from people receiving support will be key to informing how the policy matches up to their experience of living with the current rates. It may also be useful to find out how other authorities in the area have approached setting minimum rates in order to share learning and ensure fairness.

Rates must also account for utility and council tax payments, where these are not paid directly to a landlord or council tax service. Also, any gaps in wider assistance that is usually available to low-income households may need to be met.

When considering a minimum level, it is worth noting that the Joseph Rowntree Foundation has found that standard levels of universal credit do not sufficiently allow for people to meet their essential living needs.

8.3.1 Asylum support

Home Office asylum support is the absolute minimum level of support that can be paid to any family under section 17 and is solely intended to cover essential living needs.

Asylum support is paid at £49.18 per week per person in the household.

Additional top-up payments are made for:

• Pregnant mother – £5.25
• Baby under 1 – £9.50
• Child aged 1-3 – £5.23

A one-off maternity payment of £300 will also be made to a pregnant woman whose baby is due in 11 weeks or less, or if their baby is under 6 months old.

In certain cases, a person receiving section 95 asylum support can apply for additional support from the Home Office. For example, a person may be granted extra payments to cover regular essential travel costs, such as a parent taking their child to school.

Any policy that directly aligns its minimum support rates with asylum support and does not include any additional amounts is likely to be unlawful following R(BCD) v Birmingham Children’s Trust. Additionally, closely aligning minimum subsistence rates with asylum support rates will be administratively burdensome. Payments will need to be reviewed and amended whenever the Home Office changes asylum support rates, however minimal the increase (or decrease) may be. Changes to asylum support rates are made by amendments to the Asylum Support Regulations 2000.

As any changes to the amounts paid are not always immediately updated on gov.uk, a local authority will need to refer to the amended regulations for the current rates.

More information about asylum support can be found on the NRPF Network website.

8.3.2 Benefit rates

Calculating the amount that a family would receive in benefit payments is complicated as many different variables can apply. It will also be necessary to account for any differences between what is covered by section 17 support and what is covered by universal credit. It may therefore be helpful to get advice from a welfare rights specialist to assist with such calculations. The current universal credit standard rates and additional rates paid for children are set out on gov.uk.

Factors that may need to be considered in a calculation include:

• The benefit cap
• Any additional costs that the local authority is meeting, such as paying utilities directly to a landlord
• How much the family would also receive in child benefit
• How much an adult with disabilities would receive if they potentially meet the requirements for a personal independence payment

Where costs, such as utilities, are covered separately by the local authority, it may be necessary to consider how to avoid a situation where families receiving section 17 support are financially better off than they would be when they transition to benefits after obtaining leave to remain.

8.3.3 Other income thresholds

The Joseph Rowntree Foundation has produced two reports that may be useful when setting minimum subsistence rates:

• Destitution in the UK – Income Thresholds for October 2022, outlines the level of income needed for different household types to prevent them living in destitution
• A Minimum Income Standard for the UK in 2023 shows what households need to spend to reach an acceptable standard of living

8.3.4 Utilities and council tax

The local authority will need to cover the costs of utilities (energy and water) and council tax as part of the support package. When payments are not made directly to a landlord or the council tax service, then these costs must be met in addition to the standard subsistence rates.

There are different ways in which the costs of utilities could be met and may depend on whether the accommodation has a pre-payment meter:

• Payments, which may be capped, are made on presentation of a monthly or quarterly bill
• A regular allowance is added to the minimum subsistence rate, which the family is expected to use to meet utility costs

Rates or caps for utility payments can be established from researching average rates paid by providers and using Ofgem’s information about average energy consumption by household type. These rates may need to be regularly reviewed if there are rapid changes to energy costs. It may also be necessary to use some discretion for families that might have a higher-than-average use of energy, such as due to a child’s health needs.

Section 17 support will need to cover the costs of council tax, either directly with the landlord or council tax service. People with no recourse to public funds are liable for council tax and any discounts should be applied to them in the usual way. For example, a family with one adult in the household will qualify for a 25% reduction and will need to be advised to apply for this. For more information about council tax, see the NRPF Network website.

8.4 Supporting additional family members

Some families requesting section 17 support may include an adult child or adult relative who does not have parental responsibility for the child under 18 within their household. In such cases the local authority will need to consider whether it will be required to provide additional financial support (and possibly larger accommodation) for the adult family member.

Section 17(3) of the Children Act allows a local authority to provide additional support where this is necessary to meet the child’s welfare needs:

Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.

Social workers will need to make sufficient enquiries to establish the role of the adult in the family and to what extent, if any, they play in meeting the child’s needs. The results of any enquiries and resulting decision about the provision of additional support for the adult family member will need to be fully documented. (See: R (OA & Ors) v London Borough of Bexley [2020] EWHC 1107 (Admin).)

Where a local authority has concluded that it has no duty under section 17 to provide additional financial support for an adult family member, it still has the discretion to permit the family member to reside in any accommodation provided to the family and it is likely that the parent may stretch their payments to feed them. In such circumstances, families receiving subsistence payments at a rate that only covers essential living needs are likely to experience additional hardship.

8.5 Reviewing existing support rates

Where a subsistence policy sets minimum rates, it is advisable that these are reviewed at least annually, in order to ensure that they reflect any changes to living and utility costs and any case law or policy developments are properly considered. If a rationale for establishing minimum rates is set out in the current policy then the review of rates would need to adhere to this or explain why any different factors are being taken into account.

Things that will need to be considered include:

• The Consumer Price Index (CPI) basic rate of inflation
• The Office of National Statistics shopping prices comparison tool
• Any changes to other schemes of support that the rates are benchmarked against
• Feedback from families receiving section 17 support

Adjusting subsistence payments by the CPI inflation rate alone may not be a suitable measure if the prices of specific essentials, such as food and energy, have increased faster than other costs.

Working in partnership with parents and carers is a key principle in adopting a child-centred approach. Working Together to Safeguard Children states, at paragraph 18:

Practitioners involve parents, carers, families, and local communities in designing processes that affect them, including those focused on safeguarding children. They value their contributions, expertise and knowledge reflecting them in service design and continuously seek feedback from parents, carers, family networks, children, and local communities to inform service improvements.

Therefore, any feedback or complaints from families about their support will need to be taken into account when reviewing the subsistence policy. When child in need plans are reviewed, it will be necessary to ask families how they are managing with their current payments in order to assess to what extent these are meeting the child’s assessed needs.

In some instances, it may be necessary to undertake a review earlier than the date specified in the policy or a more thorough review of the entire policy. For example, a review may be needed when the courts make key findings with regards to meeting a child’s needs under section 17 or when there is a societal change that has a significant impact on living standards and costs, such as a public health emergency. Local authorities that closely align their minimum subsistence rates against Home Office asylum support rates will need to review their rates whenever the Home Office changes the amounts that it pays to people seeking asylum.

8.6 Administering payments

Local authorities use various methods of providing financial support to families, such as:

• Making payments by BACS into a bank account (if the parent has one)
• Loading payments onto a pre-paid card, which can be used to withdraw money from a cash machine and as a payment card in shops
• Cash payments
• Food vouchers and supermarket cards

Providing financial support directly into the parent’s bank account, or using a pre-paid card, is the most secure and efficient way of delivering support. These methods also provide families with autonomy and independence regarding where their funds are spent.

The use of food vouchers or supermarket cards should be limited to emergency situations where there is insufficient time to set up cash support or a payment card.

8.7 Additional support for families

A family receiving section 17 support will need to be helped to access other services that could reduce pressures on their household budgets.

The financial support provided to a family will need to take account of any services that are not available and ensure that the support provided to affected families addresses such gaps. For example, if a local authority does not provide school uniform grants to residents, it may be necessary to include in the policy a one-off annual payment to contribute to this cost for families with school-age children.

A local authority should not rely on the availability of foodbanks to meet a family’s nutritional needs. Where a family has access to a foodbank this is usually irregular and should not affect the funds they receive from the local authority.

It may also be necessary to consider providing one-off payments under section 17 as part of the support package for times when it is known that a family’s expenses are likely to increase, such as an annual winter clothing allowance. Families with no recourse to public funds that are receiving section 17 support will usually be able to access the following services:

• 15 hours/week childcare for disadvantaged 2-year-old children
• 15 hours/week childcare for 3 and 4-year-old children
• Free school meals
• Healthy start scheme (if their child is British)
• Free prescriptions, dental treatment and optical services
• School uniform grants (if their local authority provides this)
• Discounted or free travel for people with disabilities, elderly people and children (depending on what schemes are available locally)

More information about the full eligibility criteria for the services listed in this section can be found on the NRPF Network website.