This chapter sets out the legislation that local authorities in Wales 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 Wales. 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 Welsh legislation.
As immigration legislation applies across the UK, practitioners in Wales can also refer to information in previous chapters about the practical delivery of support to inform their practice.
Local authorities will also need to refer to the No Recourse to Public Funds Guidance‘ (Welsh Government, November 2022) for full information about delivering support to families with no recourse to public funds in Wales.
11.1 Public funds
In Wales, a person who is subject to a ‘no recourse to public funds’ (NRPF) condition will be prohibited from accessing:
- Most benefits – as listed on the NRPF Network website
- A local authority allocation of social housing under part VI of the Housing Act 1996 & Part II of the Housing Act 1995
Homelessness assistance under the Housing (Wales) Act 2014 is not listed as a ‘public fund’ for immigration purposes, but a person who is subject to a NRPF condition will not be eligible for this. For more information about homelessness eligibility rules, see the Allocation of Accommodation and Homelessness: Guidance for Local Authorities‘ (Welsh Government, November 2023).
Social care delivered by a 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.
The Discretionary Assistance Fund is not a ‘public fund’ for immigration purposes and Emergency Assistance Payments are available to people with no recourse to public funds when they are experiencing extreme financial hardship.
For more information about ‘public funds’ and who has no recourse to public funds see chapter 3.
11.2 Children’s social care support for families with NRPF
The Welsh Government directs local authorities to adopt a ‘Nation of Sanctuary’ approach in the ‘No recourse to public funds guidance’:
We expect local authorities to adopt an approach of providing as much support as they can, rather than concentrating on what they cannot offer.
It is essential that local authorities treat everyone seeking support with compassion and dignity, regardless of their immigration status.
Seeing the person and their needs before their immigration status is a fundamental aspect of the Nation of Sanctuary approach. It is crucial that local authority officers seek to identify what they can do to help someone in need, even if more common methods of help are unavailable because of the NRPF condition.
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 37 of the Social Services and Well-being Wales Act 2014.
Under section 37, local authorities have a duty to meet the care and support needs of a child:
(1) A local authority must meet a child’s needs for care and support if it is satisfied that conditions 1 and 2, and any conditions specified in regulations, are met (but see subsections (5) and (6)).
(2) Condition 1 is that the child is within the local authority’s area.
(3) Condition 2 is that—
(a) the needs meet the eligibility criteria, or
(b) the local authority considers it necessary to meet the needs in order to protect the child from—
(i) abuse or neglect or a risk of abuse or neglect, or
(ii) other harm or a risk of such harm.
Section 4(1) of the Care and Support (Eligibility) (Wales) Regulations 2015 sets out the eligibility criteria referred to in section 37(3)(a).
The full circumstances of the child must be considered when assessing whether they can be provided with services. It is not necessary for a child to have a need arising from physical or mental ill-health, or a disability, in order to meet the eligibility criteria. A child will meet the eligibility criteria when there is an unmet need that adversely affects their development.
For example, a child within a no recourse to public funds family could meet the eligibility criteria set out at regulation 4(1) on the basis that the parent’s inability to obtain adequate accommodation or meet the costs of their child’s basic needs:
- Is likely to have an adverse effect on the child’s development if unmet,
- Means that the child is unable to achieve one or more of the specified outcomes, including developmental goals,
- Means that neither the child or their parents are able to meet the child’s accommodation and basic needs alone or with any other support available to them, and
- Means that the child is unlikely to achieve one or more of the personal outcomes without the provision of care and support (specifically accommodation and financial support) by the local authority
11.3 Assessing need
Under section 21(1) of the Social Services and Well-being (Wales) Act, the local authority has a duty to assess the needs of any child who is ordinarily resident or is within the authority’s area, where it appears that the child may have needs for care and support in addition to, or instead of, the care and support provided by the child’s family.
In England, the courts have interpreted ‘within the authority’s area’ (for the purpose of section 17 of the Children Act 1989) to mean 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.
The duty to assess need applies regardless of the local authority’s view of the level of the child’s needs for care and support, or the level of the financial resources of the child or any person with parental responsibility for the child – section 21(3).
A needs assessment must be undertaken in line with Assessing Care and Support Needs of Individuals: Code of Practice‘ (Welsh Government, December 2015). Both the child and anyone with parental responsibility for the child must be involved in the assessment.
For children within no recourse to public funds households, a needs 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.
The local authority must then determine whether the child’s needs meet the eligibility criteria. An eligibility assessment must be undertaken in line with Part 4 of the Code of Practice (Meeting Needs)‘ (Welsh Government, October 2016).
The duty to meet a child’s care and support needs will not apply if the local authority is satisfied that those needs are being met by the child’s family. (Section 37(5) of the Social Services and Well-being (Wales) Act.)
Therefore, it will be necessary to explore what funds and resources are available to the parent to obtain suitable housing and/or meet their child’s basic needs, 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.
11.4 Interim support
Under section 38(3) of the Social Services and Well-being (Wales) Act, the local authority has a power to meet a child’s needs before the needs assessment has been completed. Therefore, interim accommodation and financial support can be provided to a family whilst the needs assessment is being undertaken.
In the ‘No recourse to public funds guidance’,the Welsh Government recommends that:
Local authorities ensure interim social services support is made available where the local authority believes that support needs exist.
For more information about providing interim support, see section 4.2.
11.5 Meeting needs
When a local authority finds that a child meets the eligibility criteria because the parent’s inability to obtain suitable accommodation or to meet the costs of the child’s basic needs has a detrimental impact on the health or development of a child, then accommodation and/or financial support will need to be provided to the family. Accommodation and financial support can also be provided when this is necessary to prevent children within the local authority’s area from suffering harm or neglect.
The Social Services and Well-being (Wales) Act allows the local authority to provide accommodation and financial support to a family as a whole:
- Section 6(4) states that the local authority ‘must have regard to the importance of promoting the upbringing of the child by the child’s family, in so far as doing so is consistent with promoting the well-being of the child’
- Section 34(1)(c) allows the local authority to meet a child’s needs under section 37 by providing services to a person other than the child with needs for care and support.
- Taking child into care, instead of supporting entire family when it is consistent with promoting the child’s well-being to do so, would be inconsistent with section 39 (duty to maintain family contact)
The Welsh government reaffirms this in the ‘No recourse to public funds guidance’:
[When there are fewer avenues of support for a child’s parent] It is not in the best interests of the child to separate families in this way and local authorities should utilise other services support to ensure the family unit can be maintained.
Section 32(2)(a) provides a local authority with a broad scope in terms of how it can meet a child’s needs and section 34 provides examples of how needs can be met.
Section 34 confirms that accommodation of any type can be provided to meet a child’s needs and that an authority can provide accommodation directly, arrange for its provision by a third party, or make payments to the family to secure accommodation.
Section 34 also allows for financial payments to be made to a family in order to meet a child’s needs.
With regards to the amount of financial support that the local authority should provide to a family, the Welsh Government recommends that:
Local authorities review their policies for providing financial support and commit to ensuring no one supported under social services will receive less than [Home Office asylum support as a] minimum (adjusted as asylum support rates change).
This recommendation is in line with the position in England, where 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).
11.6 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 37 of the Social Services and Well-being (Wales) Act 2014 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 37 of the Social Services and Well-being (Wales) Act 2014’.
11.7 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. A parent without lawful status will need to find out what their options are and will require assistance with making an application. A parent who has leave to remain that is subject to a NRPF condition will need to find out whether they can apply for a change in immigration status that allows them to access to benefits and homelessness assistance.
In Wales, legal aid is only available for asylum cases and some limited types of immigration cases.
A local authority will need to signpost families to one of the following:
- A solicitor regulated by the Law Society who practices in immigration or asylum law
- An immigration adviser registered with the Office of the Immigration Services Commissioner (OISC)
The Welsh Government No Recourse to Public Funds Guidance‘ lists voluntary and community sector services in Wales that assist migrants.
For more information about helping a family to identify and achieve a pathway off support, see chapter 9.
