This chapter sets out the legislation that local authorities in Scotland must apply when assessing and meeting the needs of children living within families with no recourse to public funds who require accommodation and financial support.

This chapter must be read in conjunction with earlier chapters of the guidance, which specify the equivalent social care legislation in England and how the courts have interpreted this applies to families with no recourse to public funds. Some of the principles that have been established by the courts in England may be applicable when implementing social care law in Scotland. However, it will be necessary to consult the local authority’s legal services for further guidance about the relevance of any English case law in interpreting Scottish legislation.

As immigration legislation applies across the UK, practitioners in Scotland may also find the information in previous chapters about the practical delivery of support useful to inform their practice.

Local authorities will also need to refer to the Migrants’ Rights and Entitlements Guidance (COSLA, August 2023) for more information about supporting families with no recourse to public funds in Scotland.

12.1 Public funds

In Scotland, a person who is subject to a ‘no recourse to public funds’ (NRPF) condition will be prohibited from accessing:

• Most benefits, including some Social Security Scotland benefits – as listed on the NRPF Network website
• Homelessness assistance under part II of the Housing (Scotland) Act 1987
• A local authority allocation of social housing under part I of the Housing (Scotland) Act 1987

Social care delivered by local authority is not a ‘public fund’ for immigration purposes and therefore can be provided to a child or their parent who has no recourse to public funds.

For more information about ‘public funds’ and who has no recourse to public funds see chapter 3.

12.2 Children’s social care support for families with NRPF

The Ending Destitution Together Strategy, developed by COSLA and the Scottish Government aims to improve support for people with NRPF who are living in Scotland through prevention, partnership, and personalisation. Local authorities will need to consider how they can embed the principles of the strategy within their services when providing support to families with no recourse to public funds.

When a family with no recourse to public funds is homeless, at risk of homelessness, or does not have sufficient income to meet their child’s basic needs, the local authority must consider whether accommodation and financial support (alongside any other assistance to meet the child’s needs) can be provided under section 22(1) of the Children Scotland Act 1995.

Under section 22(1), local authorities have a general duty to:

(a) safeguard and promote the welfare of children in their area who are in need; and so far as is consistent with that duty, promote the upbringing of such children by their families, by providing a range and level of services appropriate to the children’s needs.

Section 93(4)(a) defines a ‘child in need’ as a child being in need of care and attention because:

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services by a local authority;
(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;
(iii) he is disabled; or
(iv) he is affected adversely by the disability of any other person in his family;

When the local authority finds that the parent’s lack of access to housing and funds has a detrimental impact on the health or development of a child then the local authority will need to provide accommodation and/or financial support to the family in order to meet the child’s needs.

12.3 Assessing need

The local authority has a duty to assess the needs of a child when there is a concern that the child is in need for one of the reasons set out in section 93(4)(a) of the Children (Scotland) Act.

The general duty under section 22(1) to safeguard and promote the welfare of a child in need applies to children within the local authority’s area.

In England, the courts have interpreted ‘within the local authority’s area’ (under section 17 of the Children Act 1989) to mean that the duty to safeguard and promote the welfare of a child in need applies when a child is physically present in the area. For more information about English case law relating to the duty to assess, see chapter 5.

A child well-being assessment must be undertaken in line with Getting it Right for Every Child (GIRFEC) National Practice Model and must assess the well-being of the child in line with the factors listed at section 96 of the Children and Young People (Scotland) Act 2014.

For children within no recourse to public funds households, the child well-being assessment must consider how the parent’s inability to obtain adequate accommodation or meet the costs of their child’s basic needs impacts upon the child’s personal development and well-being, alongside any other factors affecting the child. It will therefore be necessary to explore what funds and resources are available to the parent, taking into account the effect of any immigration restrictions that apply to the parent.

For more information about immigration restrictions and establishing a parent’s financial circumstances within a needs assessment, see chapter 6.

Under section 22, the local authority has a power to meet a child’s needs before the child well-being assessment has been completed. Therefore, interim accommodation and financial support can be provided to a family whilst the needs assessment is being undertaken. For more information about providing interim support, see section 4.2.

12.4 Meeting needs

The local authority has a broad scope to meet a child’s needs by providing a range of services. When the local authority finds that the parent’s inability to obtain housing or meet the costs of their child’s basic needs has a detrimental impact on the health or development of a child then the local authority will need to provide accommodation and/or financial support to the family in order to meet the child’s needs.

The Children (Scotland) Act allows the local authority to provide accommodation and financial support to a family as a whole:

• Section 22(1) requires the local authority to promote the upbringing of a child in need (who is under 18) within their family
• Section 22(3)(a) specifies that a service may be provided for a particular child or for their family, if provided with a view to safeguard and promote the child’s welfare.
• Section 22(3)(b) gives local authorities a broad power to provide any services that are necessary to safeguard and promote a child’s welfare and specifies that this ‘may include giving assistance in kind or, in exceptional circumstances, in cash’.

In England, the courts have found that the absolute minimum level of support that a local authority should provide to a family with no recourse to public funds must not fall below the level of Home Office asylum support (plus the cost of utilities and council tax).

For more information about providing accommodation and financial support to meet a child’s needs, see chapter 8 (accommodation) and chapter 9 (subsistence).

12.5 Human rights assessments

When a parent has no lawful status in the UK, they will be subject to schedule 3 of the Nationality, Immigration and Asylum Act 2002. Schedule 3 places a bar on the provision of accommodation and financial support under section 22 of the Children (Scotland) Act 1995 to a family, where the family can return to their country of origin to avoid destitution in the UK. This bar will be lifted when there is a legal barrier or practical obstacle preventing a family from returning to their country of origin. When schedule 3 applies, the local authority will need to undertake a human rights assessment in order to establish whether there are any barriers to return, such as a pending immigration application or appeal.

For more information about schedule 3 and human rights assessments, see section 4.3. References in section 4.3 to ‘section 17 of the Children Act 1989’ can be replaced by ‘section 22 of the Children (Scotland) Act 1995’.

12.6 Accessing immigration advice

When support is provided to a family with no recourse to public funds, it will be necessary to signpost a family to an immigration adviser.

In Scotland, legal aid is available for immigration and asylum cases.

A local authority will need to signpost families to one of the following:

• A solicitor regulated by the Law Society of Scotland who practices in immigration or asylum law
• An immigration adviser registered with the Office of the Immigration Services Commissioner (OISC)

To search for a legal aid solicitor, see the Scottish Legal Aid Board website.

The COSLA Migrants’ Rights and Entitlement Guidance lists voluntary and community sector services in Scotland that assist migrants, including legal advice services.

For more information about helping a family to identify and achieve a pathway off support, see chapter 9.