May 2020: Coronavirus / COVID-19
RELEVANT GUIDANCE AND INFORMATION
Please note: This chapter gives a broad overview of the relevant legislation and guidance. This is an area which is likely to be impacted upon by ongoing case law, and legal advice should be sought as appropriate in relation to specific cases.
In addition the above guidance states it will also be necessary to have policies in place that address NRPF service provision, which address how discretionary powers are exercised towards particular groups, for example, pregnant women without children. Customer may therefore include additional local information.
- 1. Definition and Eligibility
- 2. Assessment and Provision of Services
- 3. Legal Restrictions on Providing Assistance
- 4. Role of the Local Authority
- 5. Terminating Support
- 6. Good Practice Points
1. Definition and Eligibility
1.1 Definition of No Recourse to Public Funds
The term no recourse to public funds (NRPF) applies to people who are subject to immigration control. There are legal limitations on local authorities in relation to the services that they may provide to asylum seekers and other overseas nationals who are ‘subject to immigration control’ (PSIC).
People ‘subject to immigration include non-European Economic Area (EEA) nationals who:
- require leave to enter or remain in the UK but do not have it;
- have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds; or
- have leave to enter or remain in the UK given as a result of a maintenance undertaking (for example, they are adult dependant relatives of people with settled status).
The statement ‘no public funds’ will be written on the person’s immigration documentation, if they have immigration permission with NRPF.
People subject to immigration control are not entitled to receive the following welfare benefits:
- Attendance Allowance;
- Carer’s Allowance;
- Child Benefit;
- Child Tax Credit;
- Council Tax Reduction (formerly Council Tax Benefit);
- Disability Living Allowance;
- Housing Benefit;
- Income Support;
- Income based Jobseeker’s Allowance;
- Income related Employment and Support Allowance;
- Personal Independence Payment;
- Severe Disablement Allowance;
- Social Fund Payment: budgeting loan, sure start maternity grant, funeral payment, cold weather payment and winter fuel payment;
- State Pension Credit;
- Universal Credit;
- Working Tax Credit.
They are also not entitled to local authority housing or assistance from the local authority in relation to homelessness.
People who are subject to immigration control may require the support of an interpreter in their contact with adult social care (see Interpreting, Signing and Communication Needs).
1.2 Recourse to Public Funds
People with the following types of immigration status will have recourse to public funds:
- indefinite leave to enter or remain or no time limit (apart from an adult dependent relative);
- right of abode;
- exempt from immigration control;
- refugee status;
- humanitarian protection;
- discretionary leave to remain, for example:
- leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery;
- destitution domestic violence concession;
- limited leave to remain granted under family and private life rules where the person is accepted by the Home Office as being destitute;
- unaccompanied asylum-seeking child leave.
See Section 1.1, Who has NPRF? Assessing and Supporting Adults who have no Recourse to Public Funds (England) for further information
1.3 Other migrant groups
There are two other groups of migrants who may request subsistence and /or accommodation from the local authority, because they are not entitled to welfare benefits and local authority housing, and therefore require NRPF services.
Firstly, EEA nationals who are not subject to immigration control but may not be able to access certain welfare benefits and homelessness assistance if they fail the right to reside and / or habitual residence tests, which are applied when determining eligibility for these services;
There are four types of residence rights for EEA nationals:
- An initial right of residence for 3 months but there is no entitlement to state benefit where there is no economic engaged in;
- An extended right for a qualified person or family member;
- A permanent right if there has been five years residence under the regulations or other conditions e.g. a permanent incapacity while working;
- A derivative right is derived from the status of another person e.g. a Zambrano carer right.
Secondly, asylum seekers and refused asylum seekers who have care and support needs. For more detailed information see Assessing and Supporting Adults who have No Recourse to Public Funds, No Recourse to Public Funds Network.
2. Assessment and Provision of Services
At the pre-assessment screening stage, in ascertaining the facts of the case when an adult with NRPF requests assistance, the local authority should establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence).
2.2 Sharing information
The person should be informed as to how and why information about them may be shared with other agencies, including the Home Office, and confirm this in writing. Permission will be required from them in order to share or obtain information from legal representatives and voluntary sector agencies.
2.3 Check immigration status
An immigration check should be carried out to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. To obtain immigration status checks from the Home Office on a case by case basis, contact Home Office’s Intervention and Sanctions Directorate (ISD) by email EvidenceandEnquiry@homeoffice.gsi.gov.uk.
2.3.1 Duty to inform the Home Office
The local authority is required to inform the Home Office of:
- any person they suspect or know to be unlawfully present in the UK; and
- a refused asylum seeker who has not complied with removal directions.
This duty should be explained to adults who present to the local authority.
2.4 Check legal restrictions
A check should be conducted as to whether there are any legal restrictions on providing assistance (see Section 3, Legal Restrictions on Providing Assistance, below).
3. Legal Restrictions on Providing Assistance
3.1 Adults subject to immigration control who are destitute but have no additional needs
The Care Act 2014 states a local authority may not meet the care and support needs of an adult or carer (nor prevent the needs for care and support of an adult) to whom the Immigration and Asylum Act 1999 applies and whose needs for care and support have arisen solely:
(a) because the adult is destitute,
(b) because of the physical effects, or anticipated physical effects, of being destitute.
A person is destitute if:
(a) they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
(b) they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.
3.2 Destitution Plus Test
The courts have held that a mental illness counts as a physical effect of destitution. However, where there is another possible cause of mental illness other than destitution, the local authority is not prevented from assisting that adult. Where the adult passes the ‘destitution plus test’ under the Care Act, this is interpreted to mean that there is a need for care and support which is material to such a degree that some other factor makes the adult’s situation more acute other than destitution or the effects or anticipated physical effects of destitution.
In R (PB) v Haringey LBC  EWHC 2255 (Admin) the court considered that if the applicant‘s depression arose from factors other than destitution, it could not say destitution and its physical effects were the sole cause. In R (Pajaziti) v Lewisham  EWCA Civ 1351 LBC, the claimant’s mental health problems made the need for shelter and warmth more acute and it did not arise solely from destitution.
3.3 Adults ineligible for support and assistance
The Nationality, Immigration and Asylum Act 2002 (amended) states that the following five classes of person are ineligible for support and assistance under the Care Act 2014:
1) Persons granted refugee status by another EEA State and their dependants;
2) EEA nationals and their dependants (but not UK nationals or children);
3) Failed asylum seekers who fail to comply with removal directions, and their dependants;
4) Persons unlawfully present in the UK. This includes:
- people who have overstayed their visas;
- illegal entrants;
- refused asylum seekers who made their application for asylum in-country i.e. at the Home Office rather than at the port of entry.
5) Failed 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.
Whilst those coming within this category are not entitled to ‘support or assistance’ or duties towards carers of the Care Act, a local authority can provide information and advice (see Information and Advice) or prevention (see Preventing, Reducing and Delaying Needs).
The Care Act acts as a sorting mechanism, therefore, to distinguish between those subject to immigration control:
- who might be accommodated and supported by the Home Office under the Immigration and Asylum Act 1999, for example asylum seekers or failed asylum seekers; or
- who might potentially be accommodated by a local authority under the Care Act.
A local authority has the power to provide care and support to people who met the criteria for such services under the Care Act which may include persons who are
- asylum seekers and other people not excluded by the Nationality, Immigration and Asylum Act 2002
- failed asylum seekers who are in breach of the immigration laws and other persons who are excluded by Nationality, Immigration and Asylum Act 2002 but it may be necessary to provide support to avoid a breach of a person’s rights under ECHR or EU law
providing that: such persons need the sort of care that is normally provided in a home (whether ordinary or specialised) or that would be effectively useless if the applicant had no home
and unless: those needs ‘have arisen solely because:
(a) the adult is destitute; or
(b) of the physical effects, or anticipated physical effects, of being destitute.
3.4 Human rights considerations
Whilst taking into account the legal restrictions outlined above, local authorities cannot carry out their duties in any way that breaches a person’s human rights. In all situations, the local authority should provide support where necessary to avoid a breach of their human rights. The local authority should assess the person’s needs if there would be a breach of human rights if support is not provided.
In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under the Care Act should be lifted in order to avoid a breach of human rights or (in the case of EEA nationals and their family members) European Community treaty rights.
If a case is open to the local authority, it can proceed directly to this assessment. There is no prescribed form but a NRPF template is available. This will involve considering whether the adult is freely able to return to their country of origin without there being any breach of their human rights. If there are no legal or practical barriers to return, the local authority does not have a duty to support such an adult.
Legal and practical obstacles can include factors such as lack of travel documents or being temporarily unable to travel due to a medical condition. The local authority may therefore use the human rights assessment to consider how these obstacles might be overcome. Contacting relatives or finding out about services in the country of origin may help facilitate their return.
If there are obstacles in place that mean the person cannot leave or they are taking reasonable steps to plan for leaving the United Kingdom (UK), it may be necessary to continue to provide support to them for human rights reasons. If the person accepts the offer of assistance to return to their country of origin, support should normally continue until they leave.
Local authorities must consider the case of Limbuela v Secretary of State  UKHL 66, 3 WLR , in which it was determined that a decision which compels a person to sleep rough, or be without shelter, and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (ECHR). The House of Lords ruled that it was incompatible with Article 3 to refuse support to destitute asylum seekers. The Lords attempted to identify the point at which deprivation becomes so grave that the state is obliged to intervene and provide support. The state has a duty to provide support when
“….. it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life”
Human rights issues centre on:
Article 3: prohibition on torture or inhuman or degrading treatment or punishment; and
Article 8: respect for private and family life.
The applicant may have alternative means of support in the UK that is family, friends or charity. If they have been in the UK for a long time, it is appropriate for the local authority to ask how long they have been supported and why it has now ceased.
Article 8 may mean a person’s right to family is not be limited to the applicant, for example there may be a relationship between a child and a non-custodial parent to consider. An Article 8 right is not absolute; but a breach is permissible if the grounds are subject to justification and a proportionality assessment.
ZH (Tanzania) v Secretary of State of the Home Department  UKSC4 if there are children involved the best interest of the individual child is paramount, but this is not determinative in a proportionality assessment.
Under the Children Act 2004 the local authority “must make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…”
In an email to the NRPF Network dated 29 July 2015, the Home Office and Department of Health confirmed that:
- the Nationality, Immigration and Asylum Act 2002 prevents excluded groups from receiving ‘support or assistance’ under the Care Act (see 3.2 Adults Ineligible for Support and Assistance;
- local authorities may undertake needs assessments for adults requiring care and support and carers;
- local authorities may meet urgent needs for care and support whilst undertaking the relevant assessments;
- there is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention.
4. Role of the Local Authority
4.1 Pre-assessment screening: all cases
In all cases, in establishing the facts of the case when an adult with NRPF requests assistance, the local authority should:
- establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence);
- carry out an immigration check to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. To obtain immigration status checks from the Home Office on a case by case basis, contact Home Office’s Intervention and Sanctions Directorate (ISD) by email EvidenceandEnquiry@homeoffice.gsi.gov.uk;
- check whether there are any legal restrictions on providing assistance (see Section 3, Legal Restrictions on Providing Assistance) and
- establish whether it needs to meet urgent needs for care and support, including the provision of accommodation.
4.2 If there are legal restrictions on providing assistance
4.2.1 Adults subject to immigration control who are destitute but have no additional needs
- Do they fall within the statutory bar to the provision of care, support and prevention under the Care Act, that is have their needs arisen solely as a result of destitution and are they subject to immigration control?
- If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights (see Section 3.4, Human rights considerations);
- If not (that is, they have additional needs not arising solely from destitution), an assessment of needs should be undertaken in the usual way. These include situations where there is a possibility or evidence that a migrant has additional mental or physical health, learning disability or social care needs, or any safeguarding concerns (see Safeguarding Adults Procedures).
4.2.2 Adults ineligible for support and assistance under the Nationality, Immigration and Asylum Act 2002
- Do they fall within the statutory bar to the provision of care and support? (see Section 3.3 Adults ineligible for support and assistance above);
- If so, there is no restriction on the local authority providing information and advice or prevention;
- If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights( see Section 3.4, Human rights considerations);
- If not, an assessment of needs should be undertaken in the usual way.
4.2.3 Circumstances when a local authority can support an adult
A local authority may support an adult when these conditions apply. They:
- are destitute according to the Immigration and Asylum Act 1999;
- they have a dependent child;
- they are not receiving, having applied for, or are potentially eligible for Home Office support for refused asylum seekers.
5. Terminating Support
Where support is to be terminated, this decision should be made by the service manager who should be informed by a current assessment record.
The social worker should inform the adult of this decision which should be confirmed in writing and should include the 28 day notice period from when support will terminate. It should also advise the person to seek legal advice if they disagree with the decision. The letter should be translated into the person’s first language as appropriate.
6. Good Practice Points
Local authorities need to be consistent, lawful and efficient in their response when assisting people with NRPF. The following good practice points have been established by the NPRF Network working with partner authorities and agencies.
- ‘A specialist and targeted response is required to administer services effectively; ensure there is an identified lead practitioner or team to deal with NRPF cases.
- Local authorities lacking a specialist NRPF worker should ensure that staff undertaking needs assessments for people with NRPF are adequately supported because any practitioner carrying out an assessment under the Care Act 2014 must have: ‘the skills, knowledge and competence to carry out the assessment in question and is appropriately trained’, and where knowledge is lacking, ‘must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so’.
- Establishing internal protocols and having regard for the legislation and case law referenced in this guidance will help ensure that NRPF cases are identified at point of referral and dealt with consistently. This may include how discretionary powers are exercised towards particular groups, for example, pregnant women without children.
- Provide an interpreter if this is required.
- Obtain immigration status information and monitor caseloads and expenditure using NRPF Connect, which will also inform the Home Office of local authority involvement in case. This information contributes to the only national data source on NRPF service provision.
- A local authority will usually establish whether it has a duty to provide support to an adult with NRPF by undertaking two steps:
- Pre-assessment screening – establishing the facts of the case prior to assessment
- Assessing need – determining eligibility for the provision of services’. (NRPF Network, Good Practice Points).